Unlike the ideological divide that continues over the issue of gay marriage and whether the most punitive provisions of the Voting Rights Act remain necessary nearly a half-century after the law was initially enacted, the justices' decision in Fisher v. University of Texas suggests they share the public's general suspicion of race-based preferences in college admissions.
In a 7-1 decision, the justices held that race is automatically suspect when used to grant special treatment for any group and is subject to the strictest standard of scrutiny. (Justice Elena Kagan recused herself from the case because she had participated as solicitor general in an amicus brief on the case at the lower court.) Fisher is only the latest in a long list of suits involving racial preferences dating back to 1978.
In 1996, the Texas legislature adopted a plan that guaranteed university admission to graduates of Texas high schools who ranked in the top 10 percent of their graduating class. The program was initiated as a race-neutral method of increasing diversity in the state's higher education system. And it worked -- increasing the number of black and Hispanic enrollees to 21 percent and Asians to 18 percent of students by 2004.
But the university claimed that the nearly 40 percent diversity achieved under a race-neutral plan didn't constitute a sufficient "critical mass" of minority students. Moreover, the university was especially concerned that the Top 10 Percent plan did not help more affluent black and Hispanic students who attended suburban or private schools but did not manage to graduate in the top decile to gain admission. So the university went back to giving explicit consideration to race in the application process, admitting some number of less qualified black and Hispanic students over better qualified whites and Asians.
While most conservatives would have preferred the court strike down as unconstitutional the use of race as even one among many factors in its admissions process, clearly seven justices would not have gone along -- and there may not have been even five votes to do so.
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.