Sandra Day O’Connor Backs Away From Deadline on Racial Preferences in Higher Education

In an essay published in the new book The Next 25 Years: Affirmative Action in Higher Education in the United States and South Africa, former Supreme Court justice Sandra Day O’Connor states that her 2003 opinion in the Grutter v. Bollinger case should not be interpreted as imposing a deadline on when race-sensitive admissions should be abolished.

In the ruling O’Connor wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” Many legal observers concluded that O’Connor was saying that if the Court revisited the issue of affirmative action a quarter-century down the road, in all likelihood it may decide that racial preferences were no longer justified.

But in a new essay O’Connor writes, “When the time comes to reassess the constitutionality of considering race in higher education admissions, we will need social scientists to clearly demonstrate the educational benefits of diverse student bodies, and to better understand the links between role models in one generation and aspirations and achievements of succeeding generations.”

Of course, O’Connor’s essay may have little or no impact on any future affirmative action rulings by the Supreme Court. As the old saying goes, “The Constitution is what the justices say it is.” The makeup of the Court at the time the next affirmative action case comes before it will be the deciding factor.

Since the 2003 Grutter decision, O’Connor was replaced by Samuel Alito and David Souter was replaced by Sonia Sotomayor. It is widely believed that if an affirmative action case came before the Court there would be five votes that would strike down racial preferences in higher education as unconstitutional.