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A Justices delay decision on affirmative action

Herb Boyd | 6/27/2013, 1:23 p.m.

Special to the AmNews

The final verdict on affirmative action will have to wait another year, because the Supreme Court, in a 7-1 decision, sent the challenge to the program at the University of Texas back to the lower court. In effect, this is a setback for the school's race-based affirmative action policy.

What the justices have determined is that the ball is now in federal appeals' court, where the school's admission plan must be carefully weighed, so much so that in the end, it will convince the justices "that no workable race-neutral alternatives would produce the educational benefits of diversity," said Justice Anthony Kennedy, writing for the court.

It has taken the court five years to reach a no-decision. In 2008, Abigail Fisher, a white student, sued the University of Texas when she was denied entry. Since then, she has gone on to graduate from Louisiana State University.

Even longer ago, in 2003, the court ruled favorably on affirmative action at the school, but that court was different from the current one, though it could have very easily decided to end affirmative action across the country. So the justices, except for Ruth Bader Ginsburg and Elena Kagan, are still delayed. That one vote in opposition to the decision belonged to Ginsburg. Kagan recused herself from the vote because of previous contact with elements of the case. If anything, the ruling was a compromise and overturns the decision by the 5th U.S. Circuit Court of Appeals in New Orleans that had upheld the Texas admission plan.

This ruling does not augur well for the next major decision from the court on the Voting Rights Act of 1965. It's hard to believe that the court won't take into consideration the wrong-headed notion that we live in a post-racial society with no better example than the successful election of President Barack Obama. The fact that we have a Black president by no means reduces racism or racial disparity in America. A cursory glance at a recent report by the Economic Policy Institute reveals the continuing hardships of employment, housing, health care and education for Black Americans.

There's a good chance the justices will arrive at a similar compromise with their ruling on Section 5 of the Voting Rights Act, citing the increased levels of voter registration among African-Americans in districts, where, in the past, they experienced discrimination at the voting booth. The entire clamor during the last election surrounding voter suppression suggests that newer, subtler ways are being used to keep Blacks from exercising their franchise.

And we should not be surprised if the five conservative justices decide there's no need to have a Section 5 because the obstacles Black voters faced in the past in certain parts of the country no longer exist. In this way of thinking, those areas would no longer have to get approval from the Justice Department to redraw their district lines, which is a means used nowadays to neutralize or nullify the impact of Black voters. Without enforcement of Section 5, Obama would have never been elected, because it was the unfettered shifting demographics that provided him the winning margin.

Expect a huge, sustained outcry from the public if the justices fail to do the right thing.