The Supreme Court’s Pleasant Surprise for Affirmative-Action Advocates

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By Molly Ball (June 24, 2013)

Pleasant Surprise for Affirmative-Action Advocates
by Molly Ball
Atlantic MagYesterday, 15:09

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The Supreme Court’s decision on affirmative action Monday wasn’t much of a decision. In a 7-1 vote, the justices sent the case, Fisher v. University of Texas, back to a lower court for reexamination (Justice Kagan recused herself).

Yet civil-rights advocates celebrated the result as a huge win for their side. "Today’s decision is an important victory for our nation as we strive to build a more inclusive, diverse America," said Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights. "The educational benefits of diversity are clear, and the Court’s decision reaffirms that it is in our national interest to expand opportunities for everyone." Henderson spoke on a conference call with reporters, where he was joined by representatives of the NAACP, the Mexican American Legal Defense and Education Fund (MALDEF), and other civil-rights advocacy groups.

Why were they so happy? In short, because the court’s decision could have been much worse for their side — and many feared it would be. Given the Court’s conservative tilt, advocates have been on tenterhooks about this case and the other major civil-rights case still pending, which challenges the constitutionality of Section 5 of the Voting Rights Act.

The fear was that the court might broadly declare any consideration of race in college admissions unconstitutional. The Court didn’t do that, and its decision allows the University of Texas’s race-based admissions process to continue, at least for now.

"Those on the other side who predicted a major defeat for affirmative action were clearly wrong," said Damon Hewitt of the NAACP’s Legal Defense and Education Fund. Henderson added that the ruling showed that "the court is not ready yet to overturn" the precedent set by the last affirmative action case it decided, 2003’s Grutter v. Bollinger.

David Hinojosa of MALDEF provided this helpful analogy to understand the court’s action: "This is basically like a check-engine light has come on and without looking under the hood you said, ‘Throw away the car,’" he said. "The court said, ‘No, let’s look under the hood.’ It might be a faulty light or it might just need a tuneup, but you definitely don’t need to just discard the car altogether."

The advocates acknowledge the situation has not been totally resolved in their favor. "If you just read the Scalia and Thomas opinions, they’re concurring in the judgment but they would still overturn Grutter," pointed out Sherrilyn Ifill of the NAACP. "I’m not sure you can see that as a great thing …. But it’s important that the court exercised restraint today."

Does that mean we can expect similar restraint from the court on the voting rights case, Shelby County v. Holder? I put this question to the advocates, but they demurred. "You can’t really read any tea leaves," Hewitt said.