The Supreme Court revisits discrimination and government.

Feb 22, 2012
WSJ

When the Supreme Court last upheld racial preferences in college admissions, Justice Sandra Day O’Connor wrote that she “expects that 25 years from now, the use of racial preferences will no longer be necessary.” That was 2003. By agreeing to hear a challenge to the University of Texas’s admissions policies yesterday, the Justices may have pushed up that deadline.

The precedent set by Justice O’Connor was in Grutter v. Bollinger, a 5-4 decision. Justice Anthony Kennedy dissented in that case, accusing the majority of shirking its constitutional duty to apply “strict scrutiny” to government policies that discriminate by race. “In a review that is nothing short of perfunctory,” he wrote, the majority had merely accepted the university’s “assurances” that its policies were constitutional.

Justice Kennedy, then, seems unlikely to uphold the Texas preferences. Justice O’Connor has retired and has been replaced by Justice Samuel Alito. In a 2007 case, four Justices including Justice Alito opposed racial preferences altogether, joining Chief Justice John Roberts in declaring: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

That suggests Grutter will be overturned, but as usual one question will be how far Justice Kennedy is willing to go. In Grutter, he accepted the principle that “diversity” might justify racial preferences in higher education if scrutinized strictly. That raises the possibility that he will write a middling decision striking down preferences in the case at hand but leave open the possibility that they would pass muster under other circumstances.

That’s what Justice Lewis Powell did in the 1978 Bakke case, which allowed the muddle of racial preferences that bedevils us today.

Read more at: http://online.wsj.com/article/SB10001424052970204909104577237711751188908.html?mod=WSJ_Opinion_AboveLEFTTop

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