When I joined the legal academy more than a decade ago, the topic of affirmative action in higher education was very much in the news. The Supreme Court had just handed down its decision inGrutter v. Bollinger, which upheld the practice at the University of Michigan Law School based on the assumption that minority representation was necessary for delivering a quality education. When discussing Grutter with a colleague from another school, the question of these educational benefits came up, and there were no easy answers. We both could imagine circumstances in which the perspective of a particular minority student might change the substance of the discussion, but we second-guessed ourselves because this both assumed the views of the minority student – it was racist – and demeaned the ability of other students to think outside themselves without this prompting. The stereotyping and shortselling were sufficient to give us pause. But at the end of the day, one comment from that discussion stuck with me: “Can you imagine the University of Chicago Law School without black faces?”

Frankly, I can’t, and being at a private university with a commitment to affirmative action, I will probably never have to face this possibility. Importantly, the fact that private entities are engaged in the practice is suggestive that public entities competing with them in the market for higher education should be permitted to do so as well: when government entities follow private ones in competitive markets, the worries about government abuse are fewer. But the Constitution nevertheless constrains public entities in some ways, including presumptive bans on racial classifications. So the Supreme Court is repeatedly called on to determine whether a particular racial classification or preference, whether it be in construction contracts, jobs in the Bureau of Indian Affairs , or university admissions, are constitutional. It is worth remembering that the constitutional limits on race-based decisions are designed to prevent government from using race in pernicious ways, regardless of the alleged motivation.

Thursday’s opinion in Fisher v. University of Texas (Fisher II) turned on the same questions about educational benefits that my colleague and I discussed over a decade ago. Interestingly, the case comes roughly at the midpoint of the twenty-five-year sunset for affirmative action that Justice O’Connor announced in Grutter. It also comes in the wake of the Court’s earlier conclusion in Fisher I that universities’ vague justifications for race-based admissions were not entitled to complete deference, but instead the universities must prove that the policies satisfied the requirements of strict scrutiny. Despite the O’Connor prediction that we’d be over the hump of affirmative action and the seemingly difficult burden of proof set by Fisher I, the Court reinvigorated affirmative action by upholding the University of Texas’s “holistic” use of race in its admissions decisions.

Read more at SCOTUSblog