The Patriot Post® · Racial Preferences on Trial — Again

It’s a good thing the Yellow Rose of Texas never had to go through the University of Texas admissions process. Then again, yellow may be ok these days. But UT Austin’s not-so-color-blind admissions maze made its second appearance yesterday before the U.S. Supreme Court, which may soon decide the fate of the university’s practice of judging applicants on the color of their skin rather than the content of their academic character.

The case, Fisher v. University of Texas at Austin, was filed by Abigail Fisher, a white student rejected for admission by UT Austin in 2008. Fisher claims the school’s “holistic” admissions process violates the Constitution’s equal protection clause by favoring some minorities on the basis of race. Under current Texas law, public universities like UT grant admission to the top 10% of graduates from every Texas high school. Because many of the state’s high schools are effectively racially segregated, the 10% rule leads to “automatic” diversity. Indeed, in 2004, more than 21% of UT’s freshman class was black or Hispanic without the help of any race classification.

But UT goes beyond this and also utilizes a “holistic” program, the exact definition of which seems to be the mystery of the day. One thing we know, though, is that under this program UT grants admission based on considerations including race. According to the university, this race-weighted admissions program is necessary to achieve a “critical mass” of minority students.

When Fisher made its first SCOTUS appearance, the Court remanded the case to the Fifth Circuit, which sided with UT. In the Court’s opinion, Justice Anthony Kennedy explained that the Fifth Circuit Court was wrong in “deferring to the University’s good faith in its use of racial classifications.” Instead, Kennedy noted that “in fairness to the litigants and the courts that heard the case,” UT’s process should be “considered and judged under a correct analysis.” Namely, does the university’s use of race as an admissions criteria serve a compelling government interest, and is it narrowly tailored to achieve that interest?

We in our humble shop know that any government-dictated racial-quota programs, even those “narrowly tailored” and supposedly intended meet a “compelling government interest” are nothing more that a direct assault on Essential Liberty. Nothing says, “Don’t judge by race” quite like ordering folks to judge by race. Or, put another way, “The way to stop discrimination on the basis of race,” Chief Justice John Roberts wrote in 2007, “is to stop discriminating on the basis of race.”

Fast-forward two years, and the Fifth Circuit didn’t do anything Kennedy outlined. Instead, the court simply sided with UT again, meaning the case is now back before SCOTUS.

What’s a justice to do?

Not surprisingly, get a little upset. NPR described yesterday’s oral argument as “heated.” Indeed, Justice Kennedy observed, “[W]e’re just arguing the same case. It’s as if nothing had happened.” And he even suggested sending the case back to the Fifth Circuit yet again. Bad idea as the Fifth Circuit has already showed twice that it cannot play nicely in the sandbox.

SCOTUS is expected to issue a decision sometime in June. What that ruling will be is anyone’s guess. Justice Elena Kagan recused herself from the case as she had filed a brief in support of UT during her time as U.S. solicitor general. Should the eight remaining justices split the vote evenly, the Fifth Circuit’s ruling in support of UT will stand. As is often the case with the Supreme Court, the decision may hinge on Justice Kennedy’s vote. And as we’ve seen time and again, Kennedy’s vote is hard to predict.