Race-Based Affirmative Action Makes Things Worse, Not Better

The New Republic

The Supreme Court made clear last month that it would keep affirmative action racial preferences on the front burner of the national conversation for at least the next year. This autumn, the Court will review a federal appeals court’s 8-7 decision striking down a 2006 Michigan voter initiative that banned racial preferences in state university admissions. Meanwhile, the justices are drafting their opinions in a reverse-discrimination lawsuit by a disappointed white applicant to the University of Texas that was argued last October. That decision, the first major constitutional challenge to racial preferences since 2003, is expected by June 28.

With four ardent conservative opponents of racial preferences likely to be joined by Justice Anthony Kennedy–who has never upheld a racial preference–the Court seems likely to strike down the Texas program but not likely to outlaw racial preferences entirely. The Court also seems likely to reverse the federal appeals court decision in Michigan and uphold the state’s 2006 initiative banning racial preferences in state programs. (The issue there is not whether it’s unconstitutional for universities to use racial preferences excessively, but whether it’s unconstitutional for voters to prohibit them entirely.)

The big question, however, is whether the Court will rule so narrowly that its decisions will have little impact outside Texas and Michigan, or will, for the first time, impose serious restrictions on the very large racial preferences that are routine at almost all of the nation’s selective universities. Will these cases mean a dramatic overhaul, and shrinkage, of race-based affirmative action as we know it?

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