COMMENTARY: Supreme Court gets it right on race, but how much does it matter?

Isaac Bailey | 6/24/2016, 12:17 p.m.
Black South Carolina journalist discusses the recent decision to allow the University of Texas to continue to use affirmative action ...
Supreme Court Richard Jenrette/CNN

Editor's note: Issac Bailey has been a journalist in South Carolina for two decades and was most recently the primary columnist for The Sun News in Myrtle Beach. He was a 2014 Harvard University Nieman fellow. Follow him on Twitter: @ijbailey. The views expressed are his own.

(CNN) -- In a bit of a surprise, the Supreme Court, on a 4-3 vote, upheld a lower court ruling allowing the University of Texas to use race as one of many factors in its admissions process. The decision, authored by Justice Anthony Kennedy, beat back a claim by Abigail Fisher, a white woman who argued she was unfairly not admitted to the university because of her race. This is the second time the Court has considered Fisher's case; in 2012, the justices sent the case back down to a lower court for review -- after which the Supreme Court took the case up again.

It is noteworthy that today's ruling seemed to hinge on a shift from Justice Anthony Kennedy, long considered a swing vote on cases related to social issues. His opinion for the majority in this case -- which said courts should give universities significant but not total discretion in devising admissions policies -- is a departure from his argument in the earlier Fisher case, when he argued that the lower court should have set a stricter standard to uphold the admissions policy. In today's opinion, he went so far as to link the case to previous desegregation rulings, including quoting from a 1950 case that invalidated a Texas state law barring African Americans from law schools.

Also notable was Justice Antonin Scalia's absence, but not because his vote would have changed things. He did sit for oral arguments in the case before his death, and had he lived, the decision would have likely been 4-4 -- meaning that (as in the controversial U.S. v. Texas immigration case, also decided today) the lower court ruling would still have been affirmed by an equally divided court.

But even though the result would have been the same, today's decision is significant even in Scalia's absence - because of comments he made during that oral argument in December, when he suggested minority students might not be equipped to succeed in such a challenging environment and maybe shouldn't try to attend elite schools.

Scalia's comments were a version of something I often heard in the 1990s, when I was one of the handful of black students at Davidson College, a Top 10 private liberal arts in North Carolina. Several white students -- who were an overwhelming majority at that time (today, the numbers are better but still close to 70 percent white) -- weren't shy about openly suggesting minority students probably weren't as qualified. Their assumption seemed to be a lot like Fisher's, that white students are entitled to such places because they are white.

The core of Fisher's claim: too many supposedly less-qualified minority students had gotten in, robbing her of an opportunity to attend the school of her choice.

Hers was a specious argument from the beginning, given that top universities, like the University of Texas, have struggled since their founding to construct their own student bodies in relation to our nation's increasing diversity. Kennedy's decision explicitly cited "student body diversity" as one of the "intangible characteristics" central to the "identity and educational mission" of a university and worthy of "considerable deference." White men and women, have long been over-represented at such schools, at first because of blatant discrimination against black and brown people, especially in the South. Even as the student populations at those schools grow more diverse, white men and women still remain the predominant slice of the campus population.

Fisher had a couple of ways to get in to the University of Texas, which---along with all other public universities in Texas---admits high school students who graduate in the top ten percent of their class. Fisher could have graduated in the top 10 percent of her class and received automatic admission, a policy that accounted for 92 percent of those admitted that year. Her academic accomplishments simply weren't good enough to make that cut. For the remainder of students, Texas considers race and other factors for admission.

Fisher had multiple ways to reach her goals, based on the kind of criteria she argued should be the gold standard, but in the end failed to do so. Only a person who believes she must automatically be more qualified than every person of color would have taken this case all the way to the Supreme Court. In her mind, and in the minds of those who backed her (namely the Project on Fair Representation, a conservative group behind a 2013 case that invalidated a portion of the Voting Rights Act), the only process that should pass muster is one that makes sure an even higher percentage of white people will be admitted to elite schools.

Today's decision rejects Fisher's argument that since Texas's admission of the top 10 percent was race-neutral, the school shouldn't be allowed to apply race as a factor with the remainder of applicants. Then there's this, according to ProPublica: "Also left unsaid is the fact that Fisher turned down a standard UT offer under which she could have gone to the university her sophomore year if she earned a 3.2 GPA at another Texas university school in her freshman year."

I'm not a staunch or dogmatic proponent of race-based affirmative action. I believe, for example, that poor white kids, who are also under-represented on elite college campuses, need more of a leg up than my black son and daughter, who are being raised in a stable household with a father who studied at Harvard and a mother who has a doctorate. And I'm not convinced that race-based affirmative action is a particularly important civil rights tool in a 21st century America that is fast becoming majority-minority. More than half of children in the U.S. will be non-white by 2020, according to Census projections. The white population might be less than 50 percent of the total around mid century, maybe 2060.

The Fisher case was so patently absurd, though, it needed to be tossed on its ear. I'm glad it was. Before the afterglow of the Supreme Court's decision to turn back this dubious challenge to race-based affirmative action had a chance to set in, a judge in Baltimore reminded everyone why race remains a pressing social concern.

Yet another police officer was cleared of all charges in the death of Freddie Gray. That makes two acquittals and one hung jury.

Gray was arrested after a questionable stop and had his spine nearly severed before he died while in police custody. And so far, no one has been held accountable. If that's not more evidence that black lives don't always matter, nothing is.

That grieves me far more than the Fisher ruling could have made me happy. The effects of affirmative action are hard to measure, and there's even some suggestion that it perpetuates some aspects of inequality because the minority students who benefit from it are often from stable, well-off backgrounds.

There is no mistaking, though, what it means that a young black man can have his neck broken in police custody and the system still sides with the cops. Admittance into elite universities and colleges is not a necessity for black and Latino students to become successful. The ability to keep breathing after contact with police is.

Issac Bailey has been a journalist in South Carolina for two decades and was most recently the primary columnist for The Sun News in Myrtle Beach. He was a 2014 Harvard University Nieman fellow. Follow him on Twitter: @ijbailey. The views expressed are his own.