Writing for the majority at the time, then-Justice Sandra Day O’Connor also expressed her hope that “25 years from now” affirmative action will no longer be needed. A mere 10 years later, in its 2013 ruling in Fisher v. University of Texas, the court seemed to accelerate that timeline. The majority demanded that UT more strongly demonstrate that race-conscious measures were still needed to ensure a diverse student body. Indeed, the view that minorities no longer need special consideration came through loud and clear in June, when the court struck down a key provision of the Voting Rights Act of 1965.
All of these situations involve a conflict between a mandate of equal treatment and a consideration of continuing inequalities. Does the Constitution require race blindness? Or, may the law acknowledge that apparently neutral rules about admissions, voting, or preferences may in fact entrench existing racial disparities? Given current conditions, differential treatment may be necessary to promote equality for quite some time.
After all, a recent study documented the continuing underrepresentation of minority students. As of 2009, the combined African-American and Hispanic share of the college-age population was 33 percent, but their share of enrollment at top colleges was only 15 percent.