By an excruciatingly narrow margin of 5-4, the Supreme Court has left affirmative action alive to fight another day.  Justice Sandra Day O’Connor’s majority opinion in Grutter v. Bollinger leaves in place a 26-year-old precedent to the effect that graduate schools and universities may consider race as one factor in the admissions process.

It is remarkable in one sense that the Court’s conclusion was so close and so hard fought.  For the last 30 years, public safety institutions, schools of higher learning, corporations, and the United States Military have actively sought to diversify by giving a marginal bump to minority applicants. Affirmative action at the federal contracting level is a conservative Republican creation launched during Nixon’s first presidential administration.  As further proof of the foundation behind affirmative action, it should not go unnoticed that numerous Fortune 500 corporations filed legal briefs in support of the Michigan admissions plan. 

On the other hand, Justice O’Connor’s reasoned analysis is a profile in courage. The conservative movement has beaten up race preferences for the last two decades and the public relations skills of the right have discredited the bipartisan base behind affirmative action. The judicial trend had been a scary one before O’Connor stepped in the breach: various appeals courts have nibbled away at the Michigan case’s ancestor, Regents of University of California v. Bakke.

Whether a celebration or a quick breath of relief is in order, the bulk of the holding embraced in Grutter v. Bollinger is a good and wise thing. Two points stand above the rest: the first is that public policy has failed to arrest the academic gap between minority and majority performance on standardized tests.  A race-blind admissions system is neutral in theory and punishing in fact for the black and brown products of inequitably funded and unequally sponsored public school systems.  Look at the University of Texas and the University of California Law Schools, where the ranks of black students collapsed after adverse court rulings made them abandon their racial preferences (a positive footnote: interpreting Grutter as an invitation, University of Texas has just announced the revival of its affirmative action programs).

The second undisputed premise is this: institutions of higher learning are tickets to status and income in this anonymous world of ours.  The fewer the number of minorities at the Michigans, Alabamas, and Harvards, the wider the ranks of success will become.  I frown at that outcome not out of racial solidarity, but out of an appreciation that the African American community is already dispirited at its lack of inclusion in the power leagues in America.  Rising and more pronounced discontent is the sure product of the minority success pool draining even further.

I am relatively confident that affirmative action, properly explained and rightly understood, will command broad public support.  Frankly, I would not care if it didn’t – if the Supreme Court cannot rescue us from the most short-sighted of our instincts, then who can? Bravo for Sandra Day O’Connor who got the equal protection clause badly wrong in Bush v. Gore, but who got it just right in Grutter v. Bollinger.

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