US Supreme Court is in the midst of a review of major rights acts. Photo: Reuters
Affirmative action has been preserved, for now, by the United States Supreme Court in the first of a series of decisions expected this week that will have a profound effect on how America protects equality among its citizens.
By the end of the week the court will hand down findings affecting gay marriage and the special protections that were put into place to protect the voting rights of minorities in some Southern states.
On Monday in Washington the Court handed down its decision in a case involving a white student, Abigail Fisher, who argued she had been unfairly rejected for a position at the University of Texas in 2008 while minority students with poorer grades had been selected.
This case is not the first time the Supreme Court has considered the constitutionality of affirmative action, which was instituted and extended during the 1960s to pressure institutions to accept and implement the provisions of the Civil Rights Act.
But on this occasion rather than emphatically supporting affirmative action the Court ducked key issues, referring the case back to lower courts which it said should "approve the use of race as a factor in admissions only after it concludes "that no workable race-neutral alternatives would produce the educational benefits of diversity."
In a 7-1 decision two justices said they would like to see a 2003 ruling in support of affirmative action overturned. The decision included language hostile to the notion that there was a benign way to make decisions based upon race, even in the attempt to promote diversity in education.
It was a finding that almost appeared designed to invite further challenges to affirmative action says the discrimination expert Professor Melissa Hart of the University of Colorado.
"Some of the justices clearly prefer a colour-blind application of the law," she said.
The decision prompted both sides of the debate over affirmative action - and indeed both sides of the dispute in question - to claim victory.
Edward Blum, the conservative activist who helped launch both the Fisher case, and the Voting Rights Act case also to be decided upon this week, said in a statement, "The Supreme Court has established exceptionally high hurdles for the University of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies."
In the same statement Ms Fisher said, "I am grateful to the justices for moving the nation closer to the day when a student's race isn't used at all in college admissions."
The American Civil Liberties Union had a different take.
"Today's near-unanimous decision leaves intact the important principle that universities have a compelling interest in a diverse student body, and that race can be one factor among many that universities consider in a carefully crafted admissions program," said Dennis Parker, director of the ACLU's Racial Justice Program.
"We believe that the University of Texas has made a strong showing that its admissions plan was necessary to achieve meaningful diversity, and that it can and should be upheld under the standard that the Supreme Court announced today."
The university's president, Bill Powers, said it would not change its selection process and would continue to defend the process in court.
"We remain committed to assembling a student body at the University of Texas at Austin that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the court."
The lone dissenter in the 7-1 decision was Justice Ruth Bader Ginsberg, who said in her decision read aloud in court, "In my view, the courts below adhered to this court's pathmarking decisions and there is no need for a second look."
Tom Goldstein, the publisher of SCOTUSblog and one of the nation's better known interpreters of the Supreme Court's tea leaves said he believed civil rights activists would be breathing a sigh of relief at the decision.
"There was the potential that the justices would issue a really major ruling headed in a conservative direction, limiting or eliminating affirmative action," he told MSNBC. "Instead the justices did something more modest."
The prominent CNN legal analyst Jeffrey Toobin said that as far as higher education was concerned affirmative action was now "hanging by a thread."
According to Professor Hart the calls for the rigidly colour-blind application of law signal how some justices may find in a challenge to the Voting Rights Act. This was another federal law put in place in an effort to force reluctant states to embrace desegregation and the civil rights act.
Already last week the Court struck down an Arizona law that required people to show proof of citizenship before they cast a vote, finding that it was Congress's prerogative to govern voter eligibility.
In this case the states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Virginia and Texas are arguing that their history of racial disharmony is past and they should not have get their voting regulations passed by the federal Justice Department before they are adopted.
The final two key cases to be decided upon this week pertain to marriage equality, but could also be decided upon on states' rights grounds.
One is known in shorthand as Prop 8, and is a challenge to referendum decision in California, Proposition 8, that banned gay marriage in that state. Many court analysts believe the court may uphold Prop 8 on the simple grounds that it is not the court's prerogative to contradict the will of the people of California.
The second is a challenge to what is known as DOMA, the Defense of Marriage Act that prevents federal and state government institutions from recognising gay marriage.
Bill Clinton signed DOMA into law in 1996 in an apparent effort not to lose religious support, but since then it has lost any friends it might once have had within the Democratic Party.
President Barack Obama instructed his Justice Department not to apply the law and his solicitor general not to defend it against the current challenge. Even President Clinton has voiced his regret over its introduction.
While many conservatives oppose gay marriage there is a widely held view that this conservative court may strike it down for the same reason it could uphold Prop 8 - because it is not the role of the federal government to be dictating the terms of marriage to the states.
Equality in doubt
According to Walter Dellinger, the DC lawyer who currently leads Harvard Law School's Supreme Court and Appellate Litigation Clinic, the importance of the DOMA decision cannot be exaggerated.
It is a simple as this," he writes for Slate.com "As long as DOMA is in effect, no gay couple anywhere in this country is truly married. If a gay couple is deemed not to be married for more than 1,000 purposes governed by federal law, it's hard to say that anything approaching marriage equality exists anywhere in the country, no matter how many states allow same-sex couples to marry."
Professor Dellinger argues that the court could strike down DOMA while upholding the pertinent section of Voting Rights Act without risking the accusation of hypocrisy over its stance on states rights.
DOMA, he writes, should be invalidated not because of federal overreach but because it "imposes a thousand legal disadvantages on married couples who are gay without any legitimate justification for this deprivation of individual rights". Meanwhile the Voting Rights Act also intrudes on states' autonomy but does so in support of the 15th amendment that proclaims, "the right to vote shall not be denied or abridged ... by any State on account of race."
However they find, this will be an extraordinary week in the modern history of the Supreme Court, says Professor Hart.
Members of the bench must seek to distinguish between actual inequality, such as that experienced by many members of racial minorities, and formalised inequality, like that experienced by gay people who are not afforded the recognition and protection of the law.
And they must find a way to at once protect and advance the competing demands of the rights of states and of individuals.