Conservatives are pretty happy with Thursday’s Supreme Court decision knocking down assign-kids-to-school-according-to-the color-of-their-skin policies. True, some conservatives have glanced apprehensively at Justice Kennedy’s concurring-in-part, dissenting-in-art opinion. Kennedy concurs with Roberts, Alito, Thomas, and Scalia on the un-Constitutionality of the particular ways that Seattle and Louisville used racial classification. But unlike them, Kennedy thinks the nation’s schools can and should be allowed to engineer “racial balance” if they can find a sufficiently opaque way to engage in racial gerrymandering. I share the anxiety over Kennedy’s jurisprudence.

But I also see reason for worry in Roberts’ opinion for the majority. His opinion rightly invokes the Fourteenth Amendment as prohibiting state-sponsored racial preferences except in extreme circumstances. In that sense, he restores both the “strictness” and “scrutiny” to the Court’s standard of “strict scrutiny” for racial classifications. O’Connor’s opinion in Grutter v. Bollinger in 2003 had threatened to turn “strict scrutiny” into wink-and-a-smile policy for anyone who could master the four-syllable magic word “diversity.” The real trouble with Roberts’ opinion is the deference it pays Grutter. The “diversity” dodge is not only left standing by Roberts’ decision, it is further embedded in the law. I’m glad that he found that the Grutter diversity doctrine is limited to higher education and is not to be extended to the schools. But why should higher education continue to labor under this specious legal doctrine? The National Association of Scholars has a press release on this, including comments by Steve Balch.