DESPITE THE well-founded fears of affirmative-action advocates, the Supreme Court on Monday refused to strike down a University of Texas program that allows marginal use of racial considerations in deciding admissions to the Austin campus.
If not a slam-dunk victory for diverse admissions programs, it is at least a recognition that diversity of the student body remains a compelling government interest that public colleges and universities are duty-bound to fulfill.
The decision came 35 years after the Bakke decision, in which the Supreme Court struck down a quota system employed by the University of California to guarantee enrollment to a percentage of racial applicants.
The ruling banned the use of set-aside seats for any race, resulting in the automatic exclusion of others based only on racial considerations. Controversial at the time, the ruling sought to inject a measure of fairness into a complicated issue that tries to balance the pursuit of diversity with the ideal of merit. University administrators have been desperately searching for the right solution ever since.
The last time the court addressed the issue, in 2003, it upheld the use of race as a factor by the University of Michigan in a case known as Grutter v. Bollinger. The majority opinion, written by Justice Sandra Day O’Connor, once again rejected quotas but allowed race to be a factor in admissions to meet the compelling interest of diversity.
Through the years, the court has struggled mightily with the same dilemma as admissions officers of public universities: Why should the government favor one race over another in deciding winners and losers in the race to enter college?
The answer has come from a variety of sources, including the universities themselves: The most desirable public universities are key roadways to professional and graduate schools. Absent the use of race in admissions policies, the universities will hardly look like the states they’re supposed to serve. The result will be a retreat from the ideal of a diverse yet unified society in which members of all races have an equal stake.
Texas has a program that accepts the top 10 percent of each of its high schools’ graduating classes. This guarantees a measure of diversity. But even so, the university told the court, the Top 10 percent plan failed to provide sufficient diversity, noting blacks remain underrepresented and many classrooms lack minority voices.
As a result, the university selects applicants not in the top 10 percent based on other factors, one of which is race.
That was the issue that forced the court to revisit race-based admissions programs. The court, in a 7-1 ruling, upheld the ideal of pursuing diversity, but Justice Anthony Kennedy’s ruling will probably not be the last word.
Essentially, he remained skeptical that the university could not find a better — i.e., non-racial — way of achieving diversity. The ruling sent the decision back to the appeals court and demanded that it examine whether the admissions policy is narrowly tailored to achieve the goal and if there is not a better, less restrictive, way of getting the job done.