The Supreme Court yesterday did not, for the time being, prevent the University of Texas from continuing its affirmative action plan.

Nonetheless, like the voting rights decision issued today, the Fisher case decision was another setback for racial justice. For one thing, the Court invited another challenge after the case again goes through the lower courts. There, the University will have to prove that it could find no other way to get a diverse student body without explicitly considering race, and will have to prove that it used “good faith” in use of race to achieve diversity. If challengers can show that the University’s examination of applicants’ overall qualifications is really a cover for enrolling black and other minority students—for example, if it is more intent on having black students than violin players, or students from different parts of the state, or other “diverse” factors—affirmative action will be in trouble.

The University and its civil rights group allies have, from an understandable tactical need to defend affirmative action by whatever means are available, accepted a Supreme Court framework that undermines equal rights in the long run.

That framework is “diversity.” According to it, we pursue affirmative action not to remedy the legacy of slavery, Jim Crow, and continuing discrimination, not because equal opportunity for African Americans is an end in itself, but because

• having a diverse student body improves the educational experience for white students, and because
• it trains corporate and military leaders who will be more effective if they look like and have a better understanding of those they lead.

Forgotten has been the idea that African Americans are underrepresented at the University of Texas and at other elite institutions because, as Justice Ginsburg put it in her lonely dissent, they suffer from “the lingering effects of an overtly discriminatory past, the legacy of centuries of law-sanctioned inequality.” In reality, affirmative action is necessary not to make white students more comfortable in the presence of blacks, but to remedy those effects.

Until 1996, the University of Texas did have an affirmative action plan for African American applicants and in that year, African Americans comprised 4.1 percent of the University’s freshman class. A federal appeals court then banned the use of race in admissions.

In response to this decision, the Texas State Legislature adopted a plan designed to accomplish affirmative action while pretending not to do so. Its ingenious method was to provide that students with grade point averages in about the top 10 percent of their high school graduating classes would automatically be admitted. As a result of this “Top Ten Percent Law,” the share of freshmen who were black was still lower than under the previous affirmative action program, but not as low as it might have been without the law. The share was 3.4 percent in 2002.

The Ten Percent Law was a necessary response to a judicial ban on race-conscious affirmative action, but perverse for two reasons. First, to achieve its goal of racial inclusion, it requires that high schools be racially homogenous. As Justice Ginsburg put it in her dissent, “Texas’ percentage plan was adopted with racially segregated schools front and center stage.” Black students at the top of their classes in heavily black high schools are admitted, even if their academic skills would not land them at the top of their classes in integrated schools where average academic performance was better. If Texas were ever to tackle its pervasive residential segregation, upon which racial isolation of students in high schools depends, the benefits of the Ten Percent Law would disappear. The Ten Percent Law makes integration of the University and of high schools competing and incompatible goals.

The Law is also perverse because, as is true throughout the country, the most racially isolated high schools are those located in impoverished neighborhoods. Middle class African American children, whose academic qualifications are, on average, superior to those of low-income children, are less likely to benefit from the Ten Percent Law, because they are more likely to attend integrated high schools. The Ten Percent Law ensures that many black students admitted to the University are less qualified than many other black students who are not benefitted by the plan.

If the nation were ever truly to pursue a determined strategy of integration, surely a high priority should be to more fully integrate the middle class leadership of a largely segregated black community into mainstream society. This can be too easily overlooked in efforts to give a boost to economically disadvantaged students.

In 2003, the Supreme Court ruled (in the Grutter case) that the University of Michigan Law School could use race as one factor in admissions, if its goal was to increase the diversity of its entering school class. It was in this case that the idea that race-conscious admissions could be pursued, not as a matter of racial justice, but as a way to improve the experience of white students and the qualifications of corporate and military leaders, became the predominant justification, for courts and civil rights groups, of affirmative action (although the justification had been established 25 years before, in a decision concerning medical schools, the 1978 Bakke case).

Following the Grutter decision, the University of Texas decided to supplement the Legislature’s Ten Percent Law by permitting race to be a factor in its “holistic” examination of applicants, in an effort to create a diverse freshman class. It was not until oral arguments before the Supreme Court last October that the University’s attorneys admitted that racial diversity was not its only goal—it felt it necessary to use a holistic admissions system to remedy the underrepresentation of middle class African Americans from the University, while lower income students were admitted under the Ten Percent Law.

It was this holistic admissions system, in which race was one aspect of diversity, that the Fisher case reviewed. The Ten Percent Law was not being challenged.

In 2012, 22 percent of the Texas 18 to 24 year-old population was black. In that year, 3.7 percent of the University’s entering class were African Americans who were admitted under the Ten Percent Law, and another 1.3 percent were admitted for diversity purposes, for an overall black share of 5 percent. This leaves a long way to go.

Although data are not available separately by race, of all students admitted under the Ten Percent Law, 41 percent came from families with incomes over $100,000, and 24 percent came from families with incomes of less than $40,000. But of students admitted for diversity purposes, 61 percent came from families with incomes over $100,000 and only 7 percent came from families with incomes of less than $40,000. If, as is likely, these percentages are similar for African Americans separately, the “diversity” charade is clearly essential if middle class black students are not to be disadvantaged relative to low income ones.

The Court’s decision this week was 7 – 1. Justice Kagan did not participate, probably because she had worked on the case when she was Solicitor General. The sole, courageous, dissent was that of Justice Ginsburg, who argued that the University’s affirmative action plan should simply be upheld without requiring the University to jump through further hoops in the lower courts. It is unfortunate that the two other liberal justices did not join her. Also unfortunate is that, relieved that the Court didn’t ban affirmative action outright, advocates of integration have heaped praise on the majority decision without calling greater attention to the Ginsburg dissent.

Reporters present at the Supreme Court on Monday wrote that from the bench, Justice Ginsburg said, “But for de facto racial segregation in Texas’ neighborhoods and schools, there would be no ‘top 10 percent’ law.” Her written opinion was not so careless in its language. As used by the Court, “de facto” refers to racial separation resulting from private discrimination, not government action. There is nothing “de facto” about Texas’ racial segregation, or indeed, about segregation in any of the nation’s metropolitan areas. It was created by federal, state and local government action, and the consequences of these actions endure to this day. The University of Texas, like others nationwide, has a constitutional obligation to participate in the remedy of these unconstitutional policies by increasing the enrollment of African American students, whether or not this gives white students a better educational experience or helps the military develop better leadership and discipline.

Many of these policies were not particular to Texas—the most egregious being federal inducements for whites to abandon the cities to create, and settle in, all-white suburbs. During the 1930s and 1940s, the Federal Housing Administration and Veterans Administration created many of the nation’s racially exclusive white suburbs by guaranteeing mortgages to lower-middle class white movers, with the explicit requirement that these new homeowners pledge never to re-sell their properties to African Americans.

Abigail Fisher, the plaintiff in the affirmative action case decided yesterday, is from Houston. She believes that she was unfairly disadvantaged in the University admissions process when black applicants were admitted for the purpose of enhancing freshman diversity. But far greater impediments were created for black students from Houston who resided in segregated neighborhoods where social and economic disadvantage was concentrated.

At a conference at Rice University in February, historians gave accounts of how this happened. Karen Benjamin, a professor at St. Xavier University in Chicago, recounted how, when segregated schools were still permitted, the Houston school board purposely selected sites for black and white schools that were far removed from each other, in a deliberate plan to encourage families to relocate to more racially isolated neighborhoods. Zachary Montz, a University of Texas graduate student, documented how federal and local public housing authorities in Houston purposely concentrated the black population in areas designated only for black residence, reinforcing segregated housing policies that persist to this date.

Once segregated neighborhoods in Houston were well defined, zoning and permitting authorities designated black residential neighborhoods as locales for toxic waste sites, further deteriorating the quality of life of black Houstonians. In 1979, a federal judge found that placing yet another toxic landfill in one black neighborhood was “unfortunate and insensitive” but nonetheless permitted the dump location plan to proceed.

Throughout Texas, no different from elsewhere, not only do Jim Crow patterns persist, but they continue. In an ongoing case involving the Dallas suburb of Sunnyvale, a federal judge ruled in 2000 that the town had created zoning laws specifically aimed at keeping black families from locating in the town; Sunnyvale has still not complied with the judge’s order to desegregate.

As recently as 1988, public housing projects in Clarksville, Texas, remained segregated. The quality of public housing provided in projects for whites was so superior to that provided in projects for African Americans and Hispanics that before complying with a federal judge’s order to desegregate, the U.S. Department of Housing and Urban Development made a special grant for paving streets around the previous all-black projects—with whites now living in the projects, the government apparently believed it necessary to improve the quality.

In her Fisher dissent, Justice Ginsburg ridiculed her colleagues. She observed that “only an ostrich could regard the supposedly neutral alternatives as race unconscious” and only a contorted legal mind  “could conclude that an admissions plan designed to produce racial diversity is not race conscious.”

Yet no policy at the University of Texas can go far to remedy the broader legacy of state-sponsored segregation. The idea that disadvantages suffered by black students in Texas are simply accidental, or the result of private personal choices, is historically inaccurate. Judges and advocates of integration should not be concocting “diversity” fig leaves to justify race-conscious affirmative action. Instead, we should continually remind Americans that in remedying state-sponsored segregation, much work remains to be done. Race conscious affirmative action is a part, and only a part, of that work.

Should the Texas diversity plan eventually be struck down – a not unlikely possibility if lower courts conclude that it was not sufficiently ostrich-like to fool anyone—we may rue having failed to insist that it was segregation, more than lack of diversity, that requires undoing.