In a case last week concerning racial integration programs in public school systems the U.S. Supreme Court voted 5-4 to prohibit racial methods of pursuing diverse student bodies.

Jessica Boullion

Some predicted the Supreme Court would use its ruling as an opportunity to alter precedent concerning race-based affirmative action in higher education.

The justices left the issue untouched, but public policy experts are analyzing what the June 28 ruling might foreshadow for the admission policies of public universities in future years.

Law School Prof. Mark Rosenbaum said the court’s decision worries him.

“The atmosphere is troubling,” he said. “You can’t erase generations of racism by pretending it doesn’t exist.”

Rosenbaum said that although the decision has no impact on Proposal 2, or the appeals being brought against it by the American Civil Liberties Union and the pro-affirmative action group By Any Means Necessary, it follows a political trend limiting the use of race and affirmative action to achieve diversity.

“I think it’s frightening,” he said. “It’s a very serious moment in our history.”

But the fact that Justice Anthony Kennedy, who voted with the majority, refused to sign the majority opinion – which said that while diversity should be a goal of public schools, considerations of race made by the two school districts in question were unconstitutional – has others thinking that the ruling can be seen as a 4-4-1 split and will not be influential to future cases.

Instead of signing the majority opinion, Kennedy said in a coinciding opinion that there were instances in which the use of race as a factor is appropriate – something the opinion of Chief Justice John Roberts denies.

Maya Kobersy, assistant general counsel for the University, said Kennedy’s opinion leaves open the possibility for race to be considered in the future for elementary and secondary education.

Kobersy said the ruling causes concern for higher education because most students come to colleges from public high schools, school districts may still be able to explore other race-conscious methods of pursuing diversity because of the division in the court.

She said that in the 1978 decision, University of California Board of Regents v. Bakke, a similar split of 4-4-1 found it unlawful for the University of California at Davis to have racial quotas, but the consideration of race was not unconstitutional.

Kobersy said this case was used as a precedent in the 2003 decision of Grutter v. Bollinger, which allowed for the consideration of race in the University’s Law School admissions, saying that race can be considered when reviewing applicants to higher education.

–The Associated Press contributed to this report.

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