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Race and Beyond: Small Gains for Affirmative Action

Abigail Fisher

SOURCE: AP/Charles Dharapak

Abigail Fisher, who sued the University of Texas when she was not offered a spot at the university's flagship Austin campus in 2008, arrives for a news conference at the American Enterprise Institute in Washington, Monday, June 24, 2013.

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Measured against dreaded expectations, the Supreme Court’s 7-1 decision yesterday in the Fisher v. University of Texas at Austin case can best be described as a surprising, short-yardage gain for proponents of affirmative action programs.

Simply stated, as my ThinkProgress colleague Nicole Flatow described it, “The U.S. Supreme Court punted.”

It’s an apt metaphor. In football, a punt occurs when one team realizes it can’t score but doesn’t want to surrender field advantage to the opposition. It then kicks the ball as far down the field as possible, hoping it can prevent the other team from scoring and can generate winning points at a later try. For the opposing team, which may have braced itself for the worst, a punt is a short-term victory: Nothing gained, but nothing lost either.

Arguing that diversity is a value worth preserving on college campuses, the High Court declined to strike down all race-based considerations in admission policies. That’s the good news in its decision.

But the Court didn’t stop there. It also demanded that public colleges and universities use race only as a final resort and only when all other approaches have failed to produce a diverse student body. Affirmative action antagonists cheered that part, believing such an order to be a repudiation of racial preferences.

In the specific case before the Court, the justices’ decision sidestepped the constitutionality of an admissions scheme at the University of Texas at Austin, and avoided ruling whether the plaintiff—Abigail Fisher, a white applicant to the university who was denied admission—was a victim of reverse racial discrimination herself. Instead, the Court sent the case back to an appeals court, ordering it to reconsider the case under a stricter set of standards.

The decision falls far short of an expected landmark decision. It neither gutted affirmative action programs nor enshrined them. So what does this all mean?

In the short term, the nation’s ongoing debate over race and opportunity continues unabated, with no clear end zone. After yesterday’s ruling, the additional hoops that colleges and universities will now have to jump through will be tough. While the Court kept the current regime in place for now, it set a very high bar for the University of Texas and other universities to meet: They basically have to prove that there is no better way to achieve diversity than one that takes race into account. If opponents can make any valid argument that another scheme would be better, the standard the Court has imposed requires lower courts to side for the opponent.

In theory, diversity in education programs exists, but in practice, it might be much more difficult for race-based policies to actually be used and withstand legal challenges. We should expect more lawsuits over affirmative action policies and, very likely, a return trip to the Supreme Court.

Viewed from afar and without interior knowledge of the Court’s deliberation, the decision strikes me as a grand compromise. It suggests that the justices failed to find common ground over the ultimate fate of affirmative action and instead opted to kick the ball downfield to be played another day.

Writing for the majority, Justice Anthony M. Kennedy proved me wrong as a Court prognosticator and upheld the value of a diverse student body on college campuses. He wrote:

In this case, as in similar cases, in determining whether summary judgment in favor of the University would be appropriate, the Court of Appeals must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.

His opinion was joined by all other justices, including conservatives Chief Justice John G. Roberts Jr., and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr., as well as two liberals, Justices Stephen G. Breyer and Sonia Sotomayor. Justice Elena Kagan excused herself from the case because she had worked on the case as solicitor general in the Obama administration.

Justice Ruth Bader Ginsburg was the lone dissenter in the lopsided decision, arguing in her opinion that the lower court’s support of the Texas affirmative action program was fine as practiced. She pointedly denounced her colleagues’ expectation of finding race-neutral alternatives as deliberate ignorance of reality. “[O]nly an ostrich could regard the supposedly neutral alternatives as race unconscious,” she wrote in support of affirmative action as a remedy to correct the nation’s history of racial bias.

Andrew Blotky, Director of Legal Progress at the Center for American Progress, argued in a Christian Science Monitor essay posted on the newspaper’s website hours after the decision that affirmative action is still needed. “In a country that has great diversity, many of the nation’s most prominent and important institutions still lag far behind.”

In a later conversation, Blotky told me affirmative action proponents have a reason to celebrate. “The Supreme Court had an opportunity to strike down diversity as a part of an admissions scheme, and [it] didn’t,” he said. “The decision is going to invite a bunch more lawsuits in state and federal court. But for now admissions programs that consider diversity as one of several factors remain intact.”

Who could have predicted that the Fisher case would play out like this? Certainly, I didn’t. Fearing the worst, I argued in a column last year that the Supreme Court was likely to use Fisher to “effectively seal the coffin shut” on affirmative action. I’m happy to admit that, for the time being, I was wrong and will exhale over the good fortune of what failed to happen.

At this point in the game, the High Court’s decision recognizes the same reality that any football fan knows: Sometimes a cautious punt is the wiser play than risking a game-losing fumble.

Sam Fulwood III is a Senior Fellow at the Center for American Progress and Director of the CAP Leadership Institute. His work with the Center’s Progress 2050 project examines the impact of policies on the nation when there will be no clear racial or ethnic majority by the year 2050.

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This is part of a regular column: Race and Beyond

For more from the same column, click here