The Supreme Court’s recent split decision on affirmative action seems to have both sides of the issue spinning the decision to favor themselves, with both the President and pro-affirmative action groups trying to make this look like a decisive win one way or another.
In reality, the Court has acted in a literally conservative manner. The decision in the two cases are essentially extensions of the logic in the earlier Bakke decision on affirmative action.
In the Bakke decision the California school system brought forth four justifications for affirmative action – that it would increase numbers of minority doctors (which the Court struck down as being prima facie unconstitutional), that it would counter societal discrimination, it would increase the number of doctors in rural or poor areas, and that there would be a compelling educational interest in diversity.
Of these four justification, only the last was accepted fully by the Court. The Court did rule that the term "societal discrimination" was too vague and argued that strict scrutiny demands a remedy only in the case of identified discrimination. However, in both Bakke and now Bollinger, the idea that there is a compelling interest in racial diversity was upheld.
This decision really does little to alter the debate on affirmative action. It does narrow the way in which affirmative action may be done, but it leaves the core issue unsettled. The issue behind affirmative action is this: do minority students deserve special treatment to remedy past discrimination? These cases do little other than add to the debate on that issue, and still leaves this area of the law relatively unsettled. Certainly there will be future cases on the issue of the constitutionality of affirmative action.
Even the dissenters in the case largely agree with the notion that affirmative action is legally sound. However. two notable exceptions are Justices Thomas and Scalia who argue that "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception." They also point out that this decision leaves this area of law considerably unsettled – as they also write in their dissent:
If it is appropriate for the University of Michigan Law School to use racial discrimination for the purpose of putting together a "critical mass" that will convey generic lessons in socialization and good citizenship, surely it is no less appropriate–indeed, particularly appropriate–for the civil service system of the State of Michigan to do so. There, also, those exposed to "critical masses" of certain races will presumably become better Americans, better Michiganders, better civil servants. And surely private employers cannot be criticized–indeed, should be praised–if they also "teach" good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring. The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand.
As long as the fundamental issues surrounding affirmative action remain untouched, the controversy over the issue will remain. The Court has essentially limited affirmative action in such a way as to pass on rendering full judgement on the constitutionality of the practice itself. Granted, it is not in the nature of this Court to make such dramatic changes to the law, however there will be a point in which the Court will have to rule on that core issue, and they may have only delayed that division rather than ended it.
UPDATE: As always The Volokh Conspiracy is all over the ramifications of these cases. Start from the link and work upward for a whole host of interesting opinions on the case and its effects, including a very good point from Justice Thomas on the difference between legacy and race-based admissions.
