The Kennedy dissent leaves the door open to affirmative action, but only a form that makes the explicit consideration of race a last resort. Other factors would have to come first. As it happens, there are several officially race-neutral factors that would raise no constitutional risk — and help many minority applicants.
The most obvious is income. But others may be more important. If colleges gave students credit for coming from a low-income ZIP code, black and Latino students would benefit enormously, as they would from the consideration of wealth and family status. Only 27 percent of white students grow up in a single-parent family, compared with 60 percent of black children and 34 percent of Latino children.
One possible outcome is that the court will force colleges to show they have tried these forms of affirmative action before they turn to race. Another is a decision holding that racial preferences can be no larger — in terms of SAT points, for instance — than class preferences, says Stuart Taylor Jr., a co-author of a book critical of affirmative action.
The liberal critics of affirmative action believe that many of these approaches would be better than the current one. Racial discrimination obviously continues to exist. But the disadvantages of class, by most measures, are larger today. A class-based system would be more expensive, forcing colleges to devote some money now spent on buildings and other items to financial aid instead, but it would also arguably be more meritocratic.