It appears the US Supreme Court’s non-decision today about affirmative action won’t settle anything. In its 7-1 ruling in Fisher v. University of Texas, the Court sent the case back down to lower courts to decide.  This doesn’t rule out university use of affirmative action policies in admissions, but it does not exactly endorse it either.

Significantly, Court conservatives including Justices Scalia and Thomas voted with the majority today, but both indicated they would be willing (eager?) to rule such affirmative-action policies unconstitutional.

Legal and higher-ed policy wonks will have plenty to chew over in coming days.

For me, the recent ruling underscores the ways debates over affirmative action in university admissions policies have become a stand-in for conservative sentiment about race and racism in America.  Though it is too simple to say anything about conservatism as a whole, the last forty years have established a new kind of anti-racist conservatism.  These self-described anti-racists, however, have struggled to convince anyone besides themselves of their sincere dedication to fighting racism and traditional preferences that favor whites.

The recent SCOTUS history alone has given the debate over race and schooling a kick in the pants.  In the late 1970s, in the Bakke case, the Supreme Court ruled against the use of any racial quotas in college admissions.

More recently, in Grutter v. Bollinger (2003), SCOTUS decided that race could be used in admissions decisions, as one category among others.  The key element in this decision was that race could be used to further the state’s interest in fostering a diverse learning environment.

One influential strain of opinion among conservatives can be summed up in a pithy statement by Chief Justice Roberts from 2007.  In a case from Seattle, Roberts insisted, “the way to stop discrimination on the basis of race is to stop discrimination on the basis of race.”

Conservative thinking on this issue has, in some ways, remained remarkably constant for the past generation.  In the mid-1980s, for instance, writing for the Heritage Foundation, Philip Lawler articulated a conservative critique of affirmative action admissions policies that sounds fresh today.  Such policies, Lawler argued, effectively promote racism against African Americans and other historically underrepresented college populations.  Affirmative action degrades true achievement and breeds resentment towards all African Americans.  It also leads to a racist dismissal of the true achievements of some African Americans.

Former US Representative Allen West made similar arguments in his amicus brief filed in the Fisher case.  “Race-conscious policies do not advance – in fact, they harm – the most compelling of all governmental interests: protecting and defending our Nation’s security. This is true whether practiced by colleges and universities (which, together with the Nation’s military academies, produce the majority of the commissioned officers in our country’s military), or by the military itself in the selection and advancement of its officer and enlisted personnel,” West argued.  West, a prominent African American conservative, argued that affirmative action policies degraded all applicants, African Americans most of all.

The problem with these kinds of conservative arguments is that they are often dismissed as mere window dressing.  With important exceptions such as Representative West and Justice Clarence Thomas, most African Americans support affirmative action policies.  The NAACP, for instance, has consistently and energetically supported Texas’ race-conscious admissions policy.  The National Black Law Students Association, in its amicus brief in the Fisher case noted the “systematic racial hierarchy that produces and perpetuates racial disparities in educational opportunities and outcomes.”  Affirmative-action admissions policies, the NBLSA insisted, remained necessary to promote a truly non-racist society.  Conservative insistence that such affirmative action policies actually support anti-black racism tends to fall on deaf ears among the majority of African Americans and whites who consider themselves racial liberals.

Conservative activists and intellectuals—white and black—often express what seems like honest surprise when accused of anti-black racism.  Perhaps one episode that illustrates this kind of conservative anti-racism might be that of Alice Moore and the 1974 Kanawha County textbook protest.  In this battle from the Charleston region of West Virginia, conservative parents and activists protested against a new series of English Language Arts textbooks.  Among the many complaints were protests against the inclusion of authors such as Eldridge Cleaver and George Jackson.  Such militant African American voices, many Kanawha County residents insisted, did not belong in school textbooks.  Conservative leaders insisted that this was not because they were black, but because they were violent and criminal, and apparently proud of it.

Conservative leader Alice Moore came to the 1974 controversy freshly schooled in the ideology of anti-racist conservatism.  She had attended a conference in which conservative African American politician Stephen Jenkins blasted the anti-black implications of multicultural literature.  Such literature collections, Jenkins insisted, implied that the violent, angry, criminal voices of militants such as George Jackson and Eldridge Cleaver represented the thinking of African Americans.  Such implications, Jenkins explained, proved that the true racists were the multiculturalists.  By pushing a skewed vision of African American culture, such multicultural textbooks implied that African Americans as a whole were criminal and violent.

Moore embraced this sort of anti-racist conservative ideology.  When she (politely, as always) confronted African American leader Ron English at a heated board of education meeting, Moore seemed honestly flummoxed that the English did not agree with her.  Moore pointed out that voices such as Jackson and Cleaver did not fairly represent the truths of African American life.  But The Reverend English rebutted that such militant voices represented an important part of the American experience, stretching back to Tom Paine.

Moore’s befuddlement in 1974 matches that of anti-racist, anti-affirmative action conservatives today.  Many conservatives feel that their opposition to affirmative action makes them the true anti-racists.  Yet they consistently find themselves accused of racism.  The fight over Fisher never seemed to be changing this dynamic.  Now that the Court has punted, there is even less resolution on offer.  Conservative notions that true anti-racism requires the elimination of race-based considerations in college admissions will likely continue to fall on deaf ears among leading African American advocacy groups.