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June 27, 2013 10:34 AM Day of Reckoning Only Deferred

By Ed Kilgore

After the Supreme Court decision announced Monday in Fisher v. University of Texas at Austin, the general tendency was to consign the issue of affirmative action in college admissions to a legal limbo for the immediate future, and move on to more definitive decisions.

But at Ten Miles Square, the Century Foundation’s Richard Kahlenberg argues that Anthony Kennedy’s opinion in Fisher was a de facto reversal of Grutter v. Michigan, the 2003 Supreme Court decision that validated race-based remedies as one legitimate tool for securing diversity in college admissions, if not pursued in isolation or as an end in itself:

In Fisher, Kennedy has essentially written his Grutter dissent into the majority opinion. In a key passage, the Court holds, “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” And, in a stinging rebuke to O’Connor’s opinion in Grutter, Kennedy, writing for the Fisher Court, suggests that on questions such as whether race-neutral alternatives are available, “the University receives no deference.” Professions of good faith will no longer do. “Strict scrutiny must not be strict in theory but feeble in fact,” Kennedy wrote.
In a somewhat surprising development, Kennedy was able to persuade liberal justices Stephen Breyer (who was in the majority in Grutter) and Sonya Sotomayor (who has written in strong support of racial affirmative action) to go along with the new tougher standard in Fisher, giving particular bite to the law’s new teeth. Attorney Scott Greytak told Inside Higher Ed, “This is a very quiet death sentence for affirmative action that is race-conscious.”

That’s fine with Kahlenberg, who is perhaps the country’s most prominent advocate for class-based affirmative action policies that focus on socioeconomic disadvantage rather than race. But whether you agree with him or not, he’s right that this issue isn’t just going to go off into some juridical netherworld, relieving us of its difficult questions about race and justice.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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