by Jeremy Leaming
The U.S. Supreme Court’s conservative majority is seemingly preparing to provide a potentially fatal blow to affirmative action policy. After the high court announced earlier today that it would consider Fisher v. Texas, a white college student’s challenge to the University of Texas’ affirmative action policy, The Huffington Post’s Mike Sacks wrote, that affirmative action was heading back to the high court “and this time its prospects for survival are poorer than ever.”
As Sacks notes, in 2003 the Supreme Court upheld by a 5-4 vote in Grutter v. Bollinger that the University of Michigan law scho
ol’s affirmative action program was constitutional. The law school’s policy, in part, was based on a longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like, African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in a meaningful manner.”
The lower federal court in the Grutter case found Michigan’s use of race as a factor in admissions was unconstitutional. The federal appeals court, however, overruled that opinion.
Retired Supreme Court Justice Sandra Day O’Connor wrote the majority opinion in Grutter. She noted that part of the reason Michigan used race as a factor in higher education admissions policies was to create a richer educational experience. She said the majority would defer to the school’s “educational mission.” O’Connor noted that the briefs supporting the school “substantiated” the “educational benefits” of its affirmative action policy. Those friend-of-the-court briefs, O’Connor wrote included “expert studies and reports entered into evidence at trial,” and “numerous studies show[ing] that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’”
O’Connor, moreover, said the law school had not employed a rigid quota system in trying to achieve its goal of bringing underrepresented minorities into the fold. “The Law School’s current admissions program considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race,” she wrote.
The high court 
On that score, Proposition 8 could not survive, for a very simple reason. The interests that were offered in support of denying marriage status to same-sex couples were not relevant to the actual inequality that Proposition 8 created. As the court recognized, Proposition 8 affected only the status of marriage, not the legal infrastructure supporting families headed by same-sex couples. The word “only” does not at all mean that the denial of this status is unimportant to either side of this debate. But it does confine the court’s equal protection inquiry to just those state interests that could be said to justify this denial of the title of marriage. The court rightly recognized that broad assertions of state interests that might arguably be served by restricting same-sex households and families were simply not germane to Proposition 8 itself, because that proposition did not have any effect on the surviving bundle of property, parenting, and companionship rights that support those households and families. The state was called upon to offer a non-hostility-based rationale for leaving same-sex households legally intact while denying them the status of marriage. The court found none.
The change