But the court did the next best thing: It sent the case back to the lower court and insisted that it apply the proper standard. The high court made it clear that the burden of proof must be on the university to show that its program is narrowly tailored to ensure a compelling state interest.
The victory for those of us who are skeptical of racial preferences is the consensus across the ideological divide. The conservatives on the high court weren't alone this time. Court moderates Anthony Kennedy and Stephen Breyer, as well as the liberal Sonia Sotomayor, joined conservatives John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito in asking the lower court to take a long, hard look at whether the university couldn't achieve diversity without granting preferential treatment on the basis of skin color.
What this decision says is that even advocates of affirmative action have begun to realize that they can't assume any longer that race alone confers some right to special treatment for groups whose members faced discrimination in the past. Even if a university wants to make the case that racial diversity is a compelling interest, it does not follow that the school can adopt policies that explicitly advantage members of one racial group over another, especially if there are other means to achieve diversity.
The Supreme Court remanded the case to the District Court with clear instructions that the burden of proof is on the university to show that there were no viable alternatives to using race as a "plus factor" in the admission of blacks and Hispanics. It is difficult to imagine that the university will succeed in meeting this burden. And if the lower court doesn't get it right this time, perhaps one of the fence-sitting justices will join his or her conservative colleagues to ban, once and for all, consideration of race in college admissions. We can always hope.
Linda Chavez is chairman of the Center for Equal Opportunity and author of Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics .
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