The don’t-ask-don’t-tell era of racial preferences in college admissions may soon be at an end, as Abigail Fisher’s challenge to the University of Texas’s affirmative-action program makes its second appearance before the Supreme Court, which will hear the case this Wednesday.
Significantly, Ms. Fisher isn’t asking the Court to ban affirmative action. Instead, her case seeks to hold schools to the general rule that the government may employ race-based measures only as a last resort. And even then, such measures must be almost perfectly calibrated to serve a compelling interest — in this instance, achieving the educational benefits of diversity.
In the admissions context, those principles have too often been honored in the breach. And for that, blame the Court. Its 2003 decision upholding the University of Michigan Law School’s affirmative-action program combined the tough language typical of decisions reviewing race-conscious government policies with a loose and open-ended analysis of the way the program actually worked and the way it was justified.