06/25/2013 06:28 pm ET Updated Aug 25, 2013

Mainstream Media Strike Out in Affirmative Action Coverage

It's hard to see what else the mainstream media could get wrong about the Supreme Court's decision in Fisher v. University of Texas, the affirmative action case that was sent back to the lower courts this past Monday.

A Higher Standard? I Think Not Many reports echo the sentiments of NBC News, which claimed the Court is requiring a higher standard of proof to support the use of race as a factor in college admissions. This standard is known as strict scrutiny, and requires a university to show a compelling state interest (or absolutely vital reason) for using race when reviewing student applicants. This standard also requires the college prove that the method used to consider race is narrowly tailored, or designed to impact as few people as possible in its implementation.

Despite the media's insistence to the contrary, the standard of strict scrutiny was applied in the first affirmative action case heard by the Supreme Court in 1977. In sending Fisher case back to a lower court, the Supreme Court has said strict scrutiny was not fully applied in this case, but it isn't creating a new standard. The Court is simply asking the lower court to follow past practice--not apply a new one--in evaluating the admissions system used by The University of Texas.

Good News for the University of Texas? Again, No Many Court observers were expecting this more conservative Supreme Court to throw out the entire concept of affirmative action at the very first opportunity. Since that hasn't happened, many are now concluding that the lower court ruling will have no impact on race-based admissions programs, and that the Supreme Court is unlikely to hear the case if it comes up again for appeal.

Nothing could be further from the truth. Racial diversity at The University of Texas has significantly increased since the college started to offer automatic admission to Texas students who graduated in the top ten percent of their class. Since that program doesn't take race directly into consideration, but still achieves diversity, it's easy to see why the lower court may decide no additional race-based admission programs are needed. If that happens, UT will clearly appeal, and there's no telling if the Court will resist the temptation to hear this case again.

Good News for Affirmative Action Programs? Hard to Say Observers are claiming any ruling the lower court makes will have a limited impact on other affirmative action programs, since the Texas Top Ten program isn't used anywhere else in the country.

This misses the mark on two fronts. First, there's no telling if SCOTUS will hear the case again--and if they do, all bets are off. Second, if the lower court supports the idea of diversity at colleges, but rules the Top Ten program achieves racial diversity without using race as a direct factor, their ruling could bode badly for other public colleges who consciously use race in their admissions programs. If diversity is achieved with less intervention, less means more to the courts; it's likely other colleges will be encouraged to try the Top Ten approach or something similar as a result.

The Supreme Court has used the Fisher case to prepare society for the potential for change in affirmative action. That change may not be realized in this case, but it's clear the decision to send the case back to the lower courts has created an opportunity to pause, remember the ultimate goal of affirmative action, and determine if other roads could lead to the same important goal, with less acrimony.