WASHINGTON (Reuters) - It may never be clear what happened behind the scenes at the U.S. Supreme Court to yield Monday’s compromise decision upholding university affirmative action. The case was heard in October, the first month of the term, and as the months went by and the justices deliberated in secret, the suspense grew.
Would this conservative-dominated court end university affirmative action? Closely watching were supporters who emphasized that education remains a gateway to opportunity for long-excluded blacks and Hispanics, as well as critics who said racial policies are unfair and no longer required in multicultural America.
In the end, Monday’s ruling was a modest one that took the smallest of steps. Written by Justice Anthony Kennedy, the 7-1 ruling permits admissions officers to continue considering applicants’ race to ensure campus diversity. That it took more than eight months - until the last week of the term - suggests protracted discussions and special care went in to garnering the support of justices across the ideological divide.
But even as the justices found common ground in the University of Texas case, they ensured that the last chapters of the national struggle with race have yet to be written. They already have a related racially charged case from Michigan on the calendar for next term and the legal standard voiced in Monday’s decision could eventually bring the Texas race-based admissions policy back to the high court.
The role of the country’s highest court in the decades-long affirmative action saga has never been easy, and its series of tightly decided rulings reflect the country’s ambivalence.
For now, the court has left intact the scaffolding of the historic 1978 opinion in Regents of the University of California v. Bakke, which first voiced the diversity rationale, and a 2003 decision, Grutter v. Bollinger, which vigorously affirmed the value of diversity. Both of those cases were decided on 5-4 votes.
The justices cast some doubt on the University of Texas’ racial admissions, however, by saying that lower court judges had too generously deferred to university officials. Monday’s ruling ordered the lower appeals court to reconsider its stance upholding the admissions.
The opinion was joined by Chief Justice John Roberts and three other conservative justices who have criticized racial remedies, and by two liberals, including Justice Sonia Sotomayor, a Latina who attended Princeton and Yale law school on affirmative action and has touted the value of such programs.
But tensions plainly linger. Justice Ruth Bader Ginsburg, the only justice to dissent from the decision ordering a tougher lower-court review of the Texas program, read portions of her opinion from the bench on Monday. She said the majority should have simply upheld the Texas policy. Addressing broadly the value of racial policies, Ginsburg, the senior liberal on the bench, said, “State universities need not blind themselves to the still lingering, every day evident, effects of centuries of law-sanctioned inequality.”
Among the spectators in the white marble courtroom was Justice Sandra Day O’Connor, whose 2003 decision in Grutter v. Bollinger was at stake - and remained largely preserved for now. The retired 83-year-old justice sat with her hands clasped on her lap while Kennedy outlined the majority opinion.
When O’Connor penned her decision in the 2003 case from the University of Michigan, the majority expected the decision to hold for about 25 years, “when the use of racial preferences will no longer be necessary to further the interest approved today.”
Advocates on both sides thought the end might come sooner than the O’Connor majority had supposed, given the interests of the Roberts court.
Abigail Fisher, a white suburban Houston student, began Monday’s lawsuit, claiming she was wrongly rejected by the university when minorities with similar test scores and grades were admitted. The current majority took the Texas case though university officials said the case was procedurally flawed because Fisher decided to go to Louisiana State University, from which she graduated last year.
The challenged program that considers applicants’ race supplements a Texas policy guaranteeing admission to the Austin flagship campus for high school graduates scoring in the top 10 percent of their individual schools. Administrators contended the 10 percent program did not make the university sufficiently diverse.
The ideological makeup of the court suggested it might be ready to roll back affirmative action. Justice Kennedy had dissented from the 2003 University of Michigan dispute, and O’Connor was succeeded by Justice Samuel Alito, far more conservative on racial policies and the U.S. Constitution’s equality guarantee.
But, on this go-round, both accepted the 2003 decision.
“The attainment of a diverse student body,” Kennedy wrote, “serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.”
Liberal justices Sotomayor and Stephen Breyer were ready to sign on, possibly enticed by Kennedy’s acceptance of the basic framework of the 2003 Grutter decision. The court’s fourth liberal, Elena Kagan, did not participate because of her involvement in the dispute as U.S. solicitor general before she joined the bench in 2010.
In the term that begins next October, the justices will hear a case testing the constitutionality of a statewide ban on race-based affirmative action in public education, employment and contracting. Michigan voters adopted the prohibition in 2006. A Supreme Court decision that upholds it could embolden affirmative action opponents. But such a decision would affect only Michigan and the few other states that have such bans.
A broader decision that affects campuses nationwide would have to come in another case. For now, university policies aimed at racial diversity remain constitutional. Said University of Virginia law professor John Jeffries, biographer of Justice Lewis Powell who was the author of Bakke, said of Monday’s decision, “It leaves the Powell position (for) diversity ... alive, with a chance to fight again another day.”
Reporting by Joan Biskupic; Editing by Howard Goller and Cynthia Osterman