Just how bad was the Supreme Court’s recent 4-3 decision in the Fisher case? The Court let stand the Fifth Circuit’s ruling that there was nothing constitutionally amiss in the University of Texas’ admissions policy, which gives preference to applicants based on whether or not their ancestry means that they would make the student body more “diverse.” Many observers thought that the decision would go against the university and perhaps even strike a serious blow against this sort of governmental discrimination.

But it wasn’t to be. Justice Kennedy swung away from his previous skepticism about the use of racial classifications and wrote a meek and deferential opinion that allows Texas to continue its racial discrimination. In today’s Pope Center Clarion Call, Cato Institute legal scholar Ilya Shapiro looks at the decision and the future of the campaign against racial preferences. He excoriates the ruling but isn’t pessimistic about the loss.

“Litigation will now resume in challenges brought by Asian American students against Harvard and the University of North Carolina at Chapel Hill,” Shapiro writes. “Will courts recognize the constitutional hole in colleges’ ‘holistic’ review, employing a black box to facilitate racial balancing?” He thinks that the courts eventually will.

I’m also somewhat optimistic. The use of racial preferences is attracting more opponents than ever, including some on the left who want to drop race in favor of socio-economic status. That would be another bad idea, but it does put additional pressure on the feeble structure holding up racial preferences.

Shapiro concludes, “At some point, the Supreme Court has to realize that the hallowed ‘diversity’ interest is both pretext and ephemera and that an admissions program that uses race in a constitutional manner is a self-contradicting position.”