The Fifth Circuit Court of Appeals passed up the opportunity to set the record straight on race-based college admissions Tuesday when it ruled in favor of the use of racial preferences at the University of Texas. Fisher v. University of Texas at Austin represents an ongoing legal argument over the cultural wisdom and legal standing of using race as a factor in college admissions. It’s yet another volley in the long battle for justice being sought by one-time prospective student Abigail Fisher.

Fisher first brought suit against UT in 2008 after being refused admission to the school on what she contends were racial grounds. Since the mid-1990s, the university practiced an admissions policy limited to the top 10% of all graduating high school seniors in the state of Texas. In 2003, the U.S. Supreme Court ruled in Grutter v. Bollinger that the use of racial preferences in admissions was warranted to “obtain the educational benefits of student body diversity.” Texas then added a provision that considered race or ethnicity in the admissions of any students falling below the top 10% academic-qualification threshold. Fisher, who is white, fell below that threshold and was denied admission because, she maintains, she did not represent the racial mix the university was seeking to achieve.

At the trial level, a judge ruled in favor of the university. The Fifth Circuit in 2011 affirmed that ruling. In 2013, the Supreme Court ruled 7-1, with Justice Elena Kagan recusing herself, that the university did not properly identify the racial balance it was seeking to achieve. The case was sent back to the Fifth Circuit for review, and that court basically spit out its earlier decision this week.

The biggest problem with UT’s race-based admissions policy is its call for achieving a “critical mass” of minority students without ever defining what that means. This was a clever ploy by the racial engineers who developed the standard. As Justice Sandra Day O'Connor wrote in Grutter in 2003, “Enrolling a ‘critical mass’ of minority students simply to assure some specified percentage of a particular group merely because of its race or ethnic origin would be patently unconstitutional.” The university couldn’t substantially define what a critical mass is without running afoul of the Constitution, so they created a vague term that basically allows them to say they’ll be able to identify racial balance when they see it. In so doing, they could keep the racial preferences in place indefinitely by constantly claiming racial balance had not in fact been achieved.

The Fifth Circuit’s continued support of racial preferences in the Texas university system is a blow to fairness and a victory for leftists who want to continue to divide this country by skin color. As Chief Justice John Roberts wrote in a similar racial preference case in 2007, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Fisher has said she will continue her fight, and her case may very well end up back before the Supreme Court. Her chances look good based on the makeup of the Court’s previous ruling in this matter. It’s just a shame this woman has had to endure a six-year legal battle because of a university admissions system purporting to achieve racial harmony by judging students not on their academic merits but on the color of their skin.