Challenge to affirmative action rejected

GEORGE E. CURRY | 7/4/2016, 12:02 p.m.
In many instances, the Supreme Court’s recent affirmative action ruling upholding the University of Texas’s affirmative action program was overshadowed ...
George Curry

Conservatives were clearly disappointed in Kennedy.

Elizabeth Slattery, a legal fellow at The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, wrote, “Yesterday’s ruling in Fisher v. University of Texas at Austin was disappointing, to say the least. Justice Anthony Kennedy’s majority opinion, allowing UT to continue using a race-conscious admissions program without sufficiently articulating its ‘diversity goal’ or providing proof that it was meeting that goal, betrays his previous equal protection jurisprudence and the belief that we have a colorblind Constitution.”

But the decision was cheered by UT supporters.

“No decision since Brown v. Board of Education has been as important as Fisher will prove to be in the long history of racial inclusion and educational diversity,” Laurence H. Tribe, a law professor at Harvard, told The New York Times.

Thomas, a staunch opponent of affirmative action, declared, “I write separately to reaffirm that ‘a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.’ The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”

He added, “That constitutional imperative does not change in the face of a ‘faddish theor[y]’ that racial discrimination may produce educational benefits.’”

This is not likely to be the final word on affirmative action from the Supreme Court.

Lawsuits against Harvard University and the University of North Carolina, each prepared by Project on Fair Representation, the same conservative outfit that represented Fisher in her suit against the University of Texas, are making their way through lower courts and could end up before the Supreme Court.

If those cases reach the High Court, they could well be decided by the results of the November presidential election.

Writing on Scotusblog.com, Lyle Denniston observed, “Depending upon who wins the presidential election in November, a Scalia successor could hold the balance of power on affirmative action in the future, even if Kennedy were to return to his prior skepticism about such uses of race in public policy decisions. Justices Breyer, Ginsburg, and Sotomayor might well have Justice Kagan with them in the future and might form a definite majority when a ninth Justice is on board – depending on presidential politics.”

George E. Curry is president and CEO of George Curry Media LLC. He can be reached through http://www.georgecurry.com. Follow him at http://www.twitter.com/currygeorge.