The Supreme Court was supposed to use the latest affirmative action case (this one out of Texas) to update its thinking on whether race could constitutionally be used in college admissions. It decided not to decide the case, but may have let us know what its latest thinking is.
In a 7-1 ruling written by Justice Anthony Kennedy sent the case back to the lower appellate with instructions to ask the University of Texas whether there was any way to “produce the educational benefits of diversity” without taking race into account in admissions decisions.
I’m not sure what they have in mind but there’s a hint in the current U of Texas system. UT accepts anyone who is in the top 10 percent of their high school class (within Texas). Because of long-standing housing segregation and other factors, that apparently gets the university many more students of color than if they, for example, accepted the top 10 percent based on some standard achievement test. But UT still takes “the educational benefits of diversity” into account in filling the remainder of its entering class, and the Supreme Court is signalling more strongly than ever that it isn’t comfortable with that.
Here’s how Kennedy phrased the formula:
“A university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that ‘encompasses a . . . broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.’ ”
The only justice voting against the ruling was Ruth Bader Ginsburg. Justice Elena Kagan recused herself because of involvement she had with the case before she came onto the Supreme Court. Justice Clarence Thomas repeated his previous position, which is that considering race in admissions is fundamentally unconstitutional.
Posting a quick reaction on the PBS Newshour website, attorney/legal analyst Jeff Toobin wrote:
“Affirmative action in admissions is not exactly dead, but the prognosis looks terminal to me.”