Another look at affirmative action

When the U.S. Supreme Court upheld the limited use of race as a factor in university admissions policies in 2003, it did so with a major caveat.

Writing for the majority in Grutter v. Bollinger, Justice Sandra Day O’Connor said: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Regardless of where you stand on the issue of affirmative action, it’s fair to assume that we all eagerly await that day.

And as it turns out, that day may come sooner than the court initially thought.

Only 12 years later, it has again decided to weigh in on the constitutionality of affirmative action policies, agreeing to rehear a challenge to the University of Texas at Austin’s practice that considers race as a factor in some admissions.

Two years ago, the court punted on the issue, sending the case back to the 5th Circuit Court of Appeals after finding the circuit court had failed to apply the proper standard of scrutiny when it upheld university policy in 2011.

The high court was clearly trying to buy itself more time to ponder a sometimes divisive and often controversial question, which makes its new-found willingness to reconsider its stance on racial preferences somewhat surprising.

But as we were reminded by some unexpected decisions during its most recent term, the court’s acceptance of this case is not necessarily an indication, as some have warned, that affirmative action policy is dead.

Still, it’s a sign that these practices, although well-intended, are worth another look. And in makes sense, given the rapidly shifting culture in which we live, that the court should want another look at a practice it has clearly stated should have a shelf-life.

UT-Austin fills the vast majority of its open spots via what was originally a “top 10 percent” plan, an intentionally race-neutral, statewide policy that was adjusted and now guarantees admission at Texas’ public colleges to teens who graduate in the upper 7-10 percent of their high school class.

That plan, established under Gov. George W. Bush, was designed to achieve racial, ethnic and socioeconomic diversity at schools without the explicit use of race. And by most accounts, it has been successful.

Yet for UT, that practice is not enough. The school fills its remaining slots through a policy established after the court’s 2003 ruling. The policy takes into account a variety of factors, including grades, test scores and “special circumstances” that include race and socioeconomic background.

At issue in the current case, Fisher v. the University of Texas, is whether UT’s use of a race-conscious, holistic admissions policy to supplement its race-neutral one meets the strict scrutiny standards previously established by the court.

The university sees diversity as a compelling interest, a valid and high ideal with which the court agreed in 2003. UT says its current admissions policy helps to achieve that end.

Proponents of affirmative action cite such practices as increasing educational opportunities for historically oppressed groups. That’s a laudable goal.

Through the years, these policies have undoubtedly helped to achieve racial diversity on college campuses, which many schools see as essential to their educational mission. Indeed, universities should be places where students are exposed to a wide variety of opinions and experiences and encounter peers of divergent backgrounds and beliefs.

But securing diversity’s benefits, as Justice Anthony Kennedy wrote for the court in 2013, while permissible, is also complex. Citing a predecessor, Justice Lewis F. Powell in Regents of University of California v. Bakke, he wrote that the kind of diversity “that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”

Universities should have the latitude to create the kind of student bodies that reflect our diverse and vibrant state and nation. In many cases, that will require policies that allow them to consider more than just racial diversity.

We may not have yet arrived at the day when racial preferences are no longer be necessary, but we’re certainly closer than we’ve ever been.

It’s a good thing that the court is willing to assess how much further we have to go.

This story was originally published July 2, 2015 at 7:19 PM with the headline "Another look at affirmative action."