Supreme Court has again upheld the principles behind race-conscious affirmative action, no small feat for the cause of diversity in higher education. But in framing the issue very technically, it has, wittingly or not, continued its drift away from the ideals it advanced in the civil rights era, beginning with Brown v. Board of Education.
In its decision on Monday, in Fisher v. University of Texas, the court ordered a federal appellate court to take a fresh look — under the demanding standard of “strict scrutiny” — at whether Texas’ public universities were properly using race as one factor (among many) in admitting a diverse student body. The appellate court will have to examine “how the process works in practice,” Justice Anthony M. Kennedy wrote in the decision for the majority.
As a law professor, and as the named defendant in the last two major affirmative action cases decided by the Supreme Court (in my capacity as president of the University of Michigan at the time), in 2003, I breathed a slight sigh of relief on Monday. But I worry that the new ruling will empower lower courts and, no doubt, litigants to challenge benign considerations of race — those that seek to advance legitimate goals of diversity in education — more easily than ever.