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Bessent: Supreme Court takes a pass on affirmative action

The Supreme Court Building in Washington, D.C. on

The Supreme Court Building in Washington, D.C. on March 31, 2012. (Credit: Getty Images)

Anyone who hoped for a blockbuster affirmative action ruling from the U.S. Supreme Court Monday has to be horribly frustrated. The court took a pass.

With the hot issues of same sex marriage, the Defense of Marriage Act and the Voting Rights Act, all queued up for decisions in the next few days, court watchers now have to entertain the possibility that what has the makings of an historic court term could turn out to be about as exciting as going to the prom with your sister.

In the affirmative action case the U.S. Supreme Court said a lower court didn’t apply the right standard when it ruled that the program designed to foster racial diversity at the University of Texas passed constitutional muster. The top court justices sent the dispute back to the Court of Appeals for the Fifth Circuit with instructions to try again.

They said the right standard for review is “strict scrutiny.” In order to save the program, in which race is one of many factors weighed in deciding who gets admitted, university officials have to prove there is no race-neutral way to achieve the diversity sought to improve the education all its students receive.

So the top court didn’t end affirmative action. And it didn’t bless the battle-scarred concept with a rousing affirmation of its value. It just set the stage for more litigation.

The court clearly isn’t ready to change course in any important way on the controversial issue of what role race should play in college admissions. And there’s a good chance it may not be ready for sweeping changes on same sex marriage or voting rights either.

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