




But he doesn’t explain what counts as a “race-neutral alternative.” In the context of traditional discrimination against minorities, courts have invalidated facially neutral laws that were clearly intended to benefit one particular racial group over another. These included facially neutral literacy tests and poll taxes intended to reduce the percentage of blacks who can vote. Such laws are considered racially discriminatory even though they don’t mention race in their text. Does the same standard apply to policies intended to increase the proportion of black or Hispanic students at universities? For now, at least, the Court does not say.

On the other hand, the sole dissenter, Justice Ruth Bader Ginsburg, did make clear her view that the Ten Percent plan is not race-neutral:




I think Ginsburg is absolutely correct on this point, though we disagree about its implications. In Ginsburg’s view, the courts should take a relatively deferential approach to both the Ten Percent Plan and conventional affirmative action program. I agree that the two should be evaluated under the same standards, but believe they should be subjected to tougher scrutiny than Ginsburg would require.

Future litigation is likely to focus on the issue of what counts as a genuinely “race-neutral” admissions program. Because today’s decision makes it harder for universities to use racial preferences for affirmative action purposes, much will turn on this determination. As Ginsburg puts it in her dissenting opinion, “[I]f universities cannot explicitly include race as a factor [in admissions decisions], many may ‘resort to camouflage’ to ‘maintain their minority enrollment.'” Does such “camouflage” make racially motivated admissions policies “race-neutral”? Ginsburg thinks not, and I agree. Whether other judges adopt the same view remains to be seen.