Alive and Not Well: Affirmative Action on Campus

IN THE EVER-EVOLVING and convoluted story of affirmative action in the United States, June 28, 2007 will stand out as a paradox. The Supreme Court’s conservative majority managed in one ruling to undermine racial integration in primary and secondary education across the country, twist the milestone civil rights case, Brown v. Board of Education, inside out, but also uphold what little remains of a policy they’ve always opposed—racial preferences in higher education.

The justices struck down two voluntary (as opposed to court-ordered) local plans designed to prevent the resegregation of two public school systems—one in Seattle, Washington and one in Louisville, Kentucky, and its suburbs.The two cases—Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education—were settled in a joint decision. The plans were not identical, but both used race in assigning some students to schools in order to avoid extreme racial imbalances. In their decision, the justices compared the Seattle and Louisville plans to the limited use of racial preferences in university admissions—a spectacularly inapt comparison (more on that later) but one that affirmed the policy at the university level.

Naturally, supporters of affirmative action in higher education were relieved: they had feared an even more sweeping decision that would have outlawed any use of race nationwide once and for all. But the reprieve will be temporary for two reasons. First, if inequality in the public schools continues to grow, the already tortuous efforts of some universities to include underrepresented American minorities will become well nigh impossible. This will be true even if the Supreme Court never again revisits the issue of racial preferences in higher education. And second, for the most aggressive opponents of affirmative action, the June decision proves that their best strategy is to make the courts irrelevant by getting states, one by one, to ban all forms of voluntary affirmative action. A statewide ban—in the form of an amendment to a state constitution or a law—does not conflict with any of the Supreme Court rulings on affirmative action.

WHAT HAPPENED on June 28 has a backstory, which, very briefly, goes like this. The famous 1978 Supreme Court case—Regents of the University of California v. Bakke—cut the legal justifications for voluntary racial preferences in admissions down to just one: student body diversity for the purpose of enriching the academic environment. Since then colleges and universities have designed their admission policies to conform to the diversity criterion. They have no choice: using racial preferences explicitly for the original purposes of affirmative action—to remedy past racial injustices, promote equality of opportunity, and develop minority leadership—is illegal.

Of course, most institutions assume that increas...