There are already a great many affirmative action programs in place, the U of M cases set the boundaries tighter than Bakke. Considering what we had before, isn't the opinion of the Court now more clear?

O'Connor's opinion made a majority out of what was once the lone opinion of Lewis Powell. But it also turns strict scrutiny, the standard that had been applied to state-sponsored racial discrimination since the Croson case in 1989, on its head. Wygant, Croson, and Adarand had put a very tight rein on state discrimination; this opens it up rather widely.

All government racial classifications must be analyzed by a reviewing court under strict scrutiny. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227. But not all such uses are invalidated by strict scrutiny. Race-based action necessary to further a compelling governmental interest does not violate the Equal Protection Clause so long as it is narrowly tailored to further that interest. E.g., Shaw v. Hunt, 517 U. S. 899, 908. Context matters when reviewing such action. See Gomillion v. Lightfoot, 364 U. S. 339, 343-344. Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the government's reasons for using race in a particular context. 13-15.

No, Adarand and Croson didn't deal with educational diversity but they did deal with government discrimination on the basis of race. And Adarand applied strict scrutiny to it for the first time. Since Adarand, it has been assumed that the Court would only allow such discrimination in very limited cases to remedy specific past discrimination.

In yesterday's cases, while citing more recent decisions, the Court acts as if they didn't happen. We're back to 1978 again with "diversity" as a goal to justify discrimination and allowance of it as a vague "plus factor."

Justice O'Connor writes:

Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative or mandate that a university choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups. See, e.g., Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 280, n. 6. The Court is satisfied that the Law School adequately considered the available alternatives. The Court is also satisfied that, in the context of individualized consideration of the possible diversity contributions of each applicant, the Law School's race-conscious admissions program does not unduly harm nonminority applicants. Finally, race-conscious admissions policies must be limited in time. The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. Pp. 21-31.

From my amateur reading of Wygant, it focuses on racial preferences as a remedy for past societal discrimination this is not the same as educational diversity. This decision doesn't ignore Wygant by saying that educational diversity is a compelling state interest. The Court is merely saying that it passes the test established by Wygant for compelling state interest.

Help out this simpleton...

Ain't this still discrimination?

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