A closely divided Supreme Court ruled Thursday that race can be a factor in college admissions as justices ruled against a woman alleging the University of Texas rejected her application because she is white.
Many court watchers were surprised at the 4-3 decision in favor of the policy and rejecting the complaint brought by Abigail Fisher. Justice Anthony Kennedy wrote the majority opinion and was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Elena Kagan recused herself from the case. Justices John Roberts, Clarence Thomas and Samuel Alito dissented.
“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness,’” wrote Kennedy. “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”
While the University of Texas is the winner in the case, Justice Kennedy made it clear the ruling did not give a pass to all race-based admissions policies.
“But still,” Justice Kennedy added, “it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”
The attempted compromise is not satisfying to affirmative action opponents, including leaders of Project 21, a network of black conservative leaders.
“The truth of the matter is the Constitution never contemplated the government being allowed to use race, pro or con, as a basis for offering any government service,” said Project 21 Co-Chairman Horace Cooper, who is also a constitutional attorney. “This is the 21st century and we should be a color-blind-society.”
Cooper says the court would correctly recoil at the idea of a college or university using race to weed out minority students so he believes it’s wrong to give special consideration to minorities for the same reason.
“Their position appears to be where you try really, really hard, we’re going to say it’s okay for you to let race be a factor in admissions,” said Cooper. “Our position is the abuse and the history of abuse of using race as a basis for government services shows there isn’t any reason for this.”
Cooper believes Kennedy and the other justices in the majority are reaching a telling conclusion.
“What Justice Kennedy suggested was that there’s somehow a value to the State of Texas, to the university, just in diversity itself,” said Cooper, who notes that the University of Texas did not follow the normal policy of automatically accepting anyone in the state who finishes in the top ten percent of their class. He says that policy would be a huge boon to diversity.
But he says the decision leads to two major problems. He says the greatest concern is how this policy could actually make racial stereotypes and division worse.
“Students are going to be sitting in the classroom, students who were admitted even though they didn’t meet traditional admissions criteria. They will be competing against students who were admitted under traditional admissions criteria,” said Cooper.
“The competition is going to result in our youngest and brightest concluding that you can in fact look at the race of a person and predict academic performance,” he added.
The other problem, he says, is the court is all over the map on affirmative action after a series of conflicting decisions on various cases.
“The court has created a jumble of its own making, when the more natural principle ought to be government should not predicate the provisioning of services on anyone’s race,” said Cooper.
