GEORGE E. CURRY
(NNPA)—In its latest affirmative action ruling, Fisher v. University of Texas at Austin, the Supreme Court, ruled the same way it had in its Bakke decision in 1978 and a pair of University of Michigan affirmative action rulings in 2003—one upholding the law school admissions program (Grutter v. Bollinger) and one striking down the undergraduate admissions process (Gratz v. Bollinger). In each case, the court declared that state universities have a compelling interest that could justify the consideration of race in college admissions because of the benefits that flow to all students from having a diverse student body.
However, all of the court’s decision on affirmative action in higher education were consistent with Justice Anthony Kennedy’s opinion in Fisher, when he wrote for the 7-1 majority: “…Strict scrutiny imposes on the university the ultimate burden of demonstrating before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”
In other words, universities are free to consider race only after seeking solutions that do not involve race.
In his concurring opinion in Bakke, Justice Harry Blackmun noted the absurdity of that approach.
“I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible,” he wrote in words that ring true today. “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot—we dare not—let the Equal Protection Clause perpetuate racial supremacy.”