Last month, the Supreme Court handed down a surprisingly narrow decision permitting the University of Texas’ limited consideration of race in admissions to survive — at least for the time being. In the wake of this decision, Ohio State University’s Director of Admissions Vern Granger said that his school will continue its own affirmative action program. The Supreme Court’s decision in Fisher v. University of Texas, Granger explained “just re-established the importance of diversity and all of the benefits that it has for the student body . . . It showed that there is a compelling interest in diversity [in] higher education.”
While OSU’s decision is good news for supporters of affirmative action, it is unclear how long it can last. The Supreme Court’s decision in Fisher did preserve the very limited consideration of race in admissions– as a factor that allows a school to consider diversity when selecting among multiple qualified applicants — but it also tightened the degree of skepticism courts will apply to affirmative action programs, and sent Texas’ case back to the very conservative United States Court of Appeals for the Fifth Circuit. It will be very difficult to assemble a panel of Fifth Circuit judges who will be likely to affirm Texas’ plan given another opportunity to look at it.
OSU’s plan will eventually be reviewed by the somewhat less conservative, but still quite conservative, Sixth Circuit. Although the Sixth Circuit did recently handed down a pro-affirmative action decision (that is now being reviewed by the Supreme Court), that result was possible largely because two Bush-appointees to the court were recused. It will be easier for OSU’s plan to survive review in the Sixth Circuit than it will be for Texas’ plan to survive the Fifth, but that isn’t saying very much.