Mary L. Dudziak: Why Affirmative Action Took a Hit

Mary L. Dudziak is the Asa Griggs Candler Professor of Law at Emory University. She is the author of War Time: An Idea, Its History, Its Consequences, and Exporting American Dreams: Thurgood Marshall's African Journey

(CNN) -- When the Supreme Court on Monday sent Fisher v. University of Texas, an affirmative action case, back to the lower court for a second look, supporters of race-conscious policies breathed a sigh of relief.

The University of Texas at Austin, which considers race among many other factors to achieve a "critical mass" of racial diversity in admissions, was sued by Abigail Fisher, an unsuccessful white applicant. The 5th Circuit Court of Appeals ruled in favor of the university, and many expected the Supreme Court to overturn that ruling and invalidate any use of race in college admissions. Instead, the court remanded the case....

Justice Anthony Kennedy's opinion for a surprisingly large court majority -- seven out of eight voting justices -- re-emphasized a troublesome aspect of previous rulings.

When colleges and universities take affirmative steps to ensure that their student bodies include racial diversity that enhances the educational environment for all students, their actions are held to the same strict scrutiny as the admissions requirements that originally barred students of color from many schools in the first place....