Ten years have passed since 2003. So by Sandra Day OConnors count, the United States still has 15 years to go before affirmative action is no longer necessary.
More importantly, the current Supreme Court agrees the policys time is not up. The courts ruling Monday in a University of Texas case reveals that the justices, even while tilting more conservative than in OConnors day, agree that race can still be a factor public universities consider in admitting students.
Affirmative action supporters worried that the court would ban the practice with its ruling in Fisher v. University of Texas at Austin. Instead, the court made clear it still found racial preferences permissible, reaffirming previous high court opinions, including one OConnor wrote in 2003 in which she said it would be 25 years before the approach would no longer be needed. Mondays ruling affirmed that ensuring the educational benefits of student body diversity is a compelling state interest that can justify the use of race in admissions.
At the same time, the court emphasized that such practices can be used only when race-neutral strategies arent sufficient to achieve a diverse student body. Justice Anthony Kennedy wrote, in a 7-1 ruling, that the burden of proof is on the universities. He said the courts must apply strict scrutiny to determine whether the programs are narrowly tailored to achieve their purpose. The appeals court failed to do so, Kennedy said, and now must.
That, too, is a reiteration of previous opinions. So in legal terms, Mondays ruling breaks little new ground. Still, the message is clear: Race can be one consideration, but courts are likely to apply an increasingly high bar for its appropriate use.
Some pundits complained Monday that the court avoided tackling the fundamental issue. But the ruling, while narrow, was correct, and encouraging. Our nation will be better prepared to thrive in a globally competitive economy if its young people interact with students from an array of backgrounds and are exposed to a variety of perspectives. Strictly admitting only those with the highest SAT scores doesnt create the most dynamic student body. A campus also needs those who play the cello, or speak Chinese, or play field hockey or are of a different race or ethnicity. The best universities consider all the characteristics a student brings to the table and all the ways she can contribute to a vibrant learning environment. The court recognized that.
Abigail Fisher, who is white, brought the suit after she was denied admission to UT-Austin in 2008. The university says she didnt lose her spot because of racial preferences, though; her academic resume just didnt measure up. The school rejected 17,000 of 29,000 applicants that year, after all.
Given the courts admonishment of the appeals court, universities could feel pressure to find race-neutral approaches to achieve similar ends. One they might need to consider: Employing affirmative action on a socioeconomic basis. Research suggests that wealth, or the lack of it, is a bigger burden to students futures than skin color. Low-income kids are outnumbered 25-to-1 by students from wealthier families at the nations most selective schools, research shows. An approach based on class would help those hurt by an unlevel playing field while passing constitutional muster.
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