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Affirmative action lives to die another day

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There will come a day when the U.S. Supreme Court decides that affirmative action is no longer constitutional. The question is whether that day comes before or after the rest of America decides that affirmative action is no longer necessary.

All that’s certain is that Monday was neither day. In a 7-1 ruling, the court agreed that the University of Texas can consider race as a factor in admissions. A diverse student body, wrote Justice Anthony Kennedy, "is a constitutionally permissible goal." How a university goes about reaching that goal, however, is a question for the courts, which must satisfy themselves that there are "no workable race-neutral alternatives" to achieving it. The Supreme Court returned the case to the lower courts to figure this out.

Kennedy’s decision may have saved affirmative action for the moment. But it sets a high bar for keeping the policy alive. The decision also joins a long line of unsatisfying jurisprudence from the court on this issue.

The court’s first major foray into the constitutionality of university affirmative-action programs, in 1978, was a six- opinion, 45,000-word extravaganza that both ordered the university to admit the white applicant who had been denied admission and found the very policy that had resulted in his denial constitutional. Twenty-five years later, the court ruled that universities were still free to pursue "race-conscious" admissions programs in order to achieve a "critical mass" of minority students, but left undefined exactly what constitutes a "critical mass."

The legitimacy of affirmative action, as we’ve noted, centers on this question: How much is enough? It’s a question that dominated oral arguments in the case the court decided Monday — yet goes unmentioned, except in passing, in Kennedy’s 13-page opinion.

In the court’s defence, it is a hard question. Also in the court’s defence, there is no public consensus on the wisdom of affirmative action. Although support has been declining for years, the American people are pretty much evenly divided on the need for it.

To observe that affirmative action is an imperfect solution to a real problem hardly qualifies as novel commentary. "In order to get beyond racism, we must first take account of race," sighed Justice Harry Blackmun 35 years ago; it’s what Justice Sandra Day O’Connor was referring to when in 2003 she wrote hopefully that the court would no longer have to address this issue in 25 years. Both justices, it’s worth pointing out, were upholding university affirmative-action programs.

No one disputes the need for America’s institutions to reflect America’s diversity. The success of a multicultural nation depends on its ability to engage and reward all strands of society.

So what happens if the lower court decides sometime next year or the year after that Texas’s affirmative-action program is unconstitutional? Then it will be up to Texas and other universities, 116 of which filed briefs in support of its program, to devise other ways to increase diversity on campus.

Texas’s top 10-per-cent rule, which requires the university to admit any high school student who graduates in roughly the top 10 per cent of his or her class, shows one way forward. (Although, as Justice Ruth Bader Ginsburg pointed out in her dissent, the rule depends on segregation at the high school level to produce diversity at the college level.) Or, universities could focus more on class instead of racial diversity, which would also help reduce rising inequality. Finally, they could do more to recruit qualified low-income students, many of whom aren’t even applying to college.

None of these policies would be without controversy. They all raise the fairness question: Why should some applicants get special consideration? To which one might respond: The university admissions process will never be completely fair. The difference between the last student to gain admission and the first one denied will always be arbitrary. Life, as someone once said, is unfair.

Whether that unfairness is also unconstitutional is a question raised by race-based affirmative-action programs. Someday soon — perhaps as early as next year, as the court has agreed to hear another case about a state affirmative-action program — the court seems likely to conclude that it is. It will then be the public’s turn to decide on the next phase in the contentious but necessary work of making America’s diverse society more just, open and fair.

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