by Clarence Page

When the Supreme Court decided to send its latest hot potato of an affirmative action case back to a lower court for further review, civil rights veteran Julian Bond gave me a two-word reaction: "They punted."

Translation for non-sports fans: They dodged making the tough call, at least for now.

"At least, they did no harm," he added. Indeed, the conservative-leaning high court could have used the case of Abigail Fisher v. the University of Texas at Austin to radically rule all race-based remedies for historic discrimination to be unconstitutional, as its right-wing members would like.

Instead the court voted 7 to 1 to send the university's race-conscious admissions plan back to a lower court for further review. A closer reading reveals an important message for our changing times: Diversity is a necessary goal, but the court appears to be recognizing that our society's standards are evolving, as they should, from strictly race-based diversity to class-based.

Affirmative action began as race-based program for good reasons. But those reasons are delivering rapidly diminishing returns in these times, while the challenges posed by income inequality continue to rise across racial lines.

The opinion by Justice Anthony M. Kennedy ordered the lower court to apply "strict scrutiny" this time to make sure the plan is "narrowly tailored to achieve the only interest that this Court has approved in this context."

That interest, Kennedy wrote, is "the benefits of a student body diversity that 'encompasses a ... broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.' "

In other words, as the court has held since the 1970s, a college or university can still take race into account but only after race-neutral remedies have been exhausted as a means to achieve the goal of diversity.

The idea of class-based affirmative action is rapidly growing in popularity across racial lines, particularly among the young. But, because of severe educational inequities and other class-linked problems, efforts to do it have not achieved enough racial and ethnic diversity, educators say.

In that pursuit, the Fisher case offers an important test of Texas' groundbreaking "Top Ten Percent" plan, enacted by then-Gov. George W. Bush in the 1990s. To attract diversity without explicitly mentioning race, it granted automatic admission to any teen who graduated in the upper 10 percent of his or her high school class.

In 2008, the year Abigail Fisher of suburban Sugar Land, Texas, sent in her application, students who entered through the university's Top 10 program took up 92 percent of the in-state slots.

It is not true, as some news reports have put it, that Fisher was kept out of Texas by her race, according to court documents filed by the university; her grades weren't high enough.

Fisher was a good student, but she fell short of graduating in the top 10 percent of her class. She and other applicants for the limited remaining slots were evaluated based on combined scores from grades, test scores and other achievements, plus "special circumstances" that included family economic conditions and race.

Yet, even among those students, court records show her grade point average of 3.59 and SAT scores of 1188 out of 1600 to be good but not slam-dunks for acceptance in one of the remaining 841 slots, court documents show.

Fisher also was turned down from a summer program, since discontinued, that offered provisional admission to some applicants who were denied admission to the fall class.

Although five minority students with lower combined scores than Fisher's were offered admission to that program, according to the university, so were 42 white applicants who also had scores equal to Fisher's or lower. Plus, the university pointed out, 168 minority applicants whose scores were the same or higher than Fisher's also were denied admission to the program.

Fisher fell short of being the ideal test case. That's just one good reason to send her case back for closer scrutiny. She went on to graduate from Louisiana State University, but she raised some important questions about how we can pursue diversity in ways that bridge more gaps than just race.




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Supreme Court: 'Diversity' Means More than Race