Why We Ask: Our mission and operations are funded 100% by conservatives like you. Please help us continue to extend Liberty to the next generation and support the 2021 Year-End Campaign today.

John A. Sparks / June 28, 2013

Fisher v. University of Texas: The Court Misses an Opportunity

The Supreme Court, in a case heard by eight Justices (Justice Kagan recused herself), has issued its decision involving the admissions policies of the University of Texas. In a 7-1 decision, the court sent the case back to the Fifth Circuit Court of Appeals because that court did not apply the legal standard of “strict scrutiny.” In short, "strict scrutiny" means that whenever a governmental entity, in this case the University of Texas, uses race as a reason for its actions, that kind of policy must be very closely scrutinized since it is inherently suspect. Abigail Fisher applied for admission to the University of Texas but was rejected presumably, in part, because she would not add to the racial diversity of the campus since she was white. She claimed that she was denied the opportunity to compete on an equal basis for admissions and that the university violated the equal protection clause of the Fourteenth Amendment to the Constitution.

This is not the first time that the University of Texas has come before the court. In 1946, a black applicant, Herman Sweatt, sought admission to the University of Texas Law School. He was rejected because of his race despite an attempt by the University of Texas to create a separate law school for blacks in order to avoid admitting him. The case went all the way to the Supreme Court and in 1949 the court struck down Texas’ racial-based policy. Now, 67 years after Sweatt, the court in Fisher was again dealing with the University of Texas over its admissions policies. But ironically, this time the issue was not the excluding of applicants because of race, but the affirmative including of students because of race. What did the court do? What should it have done?

What the majority opinion in Fisher did was to regard the reasoning of three earlier cases “as given for purposes of deciding this case.” Those earlier cases were the University of California v. Bakke, and the two University of Michigan cases, Gratz v. Bollinger and Grutter v. Bollinger. When Justice Anthony Kennedy and six others looked at those cases, which contain the current law on the subject of race and admissions, they concluded that the Fifth Circuit Court of Appeals had failed to strictly scrutinize university policies in a way required by the those cases. Now, the Fifth Circuit must apply strict scrutiny when it comes to admissions policies of the university which had used race in its admission decision. So the majority opinion is therefore a kind of technical remand of the case to the lower Circuit Court.

What should the high court have done? It should have followed the reasoning of a fine concurring opinion by Justice Clarence Thomas. Justice Thomas states clearly “that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause” and that “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” Thomas stands firmly against the assertion by the University of Texas that its discrimination is “benign.” “I think the lesson of history is clear enough,” he wrote. “Racial discrimination is never benign.” Courageously, Thomas continues, “There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race.” In the process, such a racially motivated admission policy “stamps [blacks and Hispanics] with a badge of inferiority. It taints the accomplishments of all those who are admitted as a result of racial discrimination.” Moreover, those minority students who were admitted on the basis of merit cannot be distinguished “from the ones whose race played a role in their admission.” Therefore, their admissions and their achievements are tainted as well.

The answer that the court should have given, and which it may still give, is the answer Chief Justice Roberts gave in an earlier case when he said that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

Dr. John A. Sparks is the retired dean of the Calderwood School of Arts & Letters, Grove City College, Grove City, Pa., and teaches constitutional history and business Law on a part-time basis. He is a member of the State Bars of Michigan and Pennsylvania and is a fellow for educational policy for The Center for Vision & Values at Grove City College.

Start a conversation using these share links:

Who We Are

The Patriot Post is a highly acclaimed weekday digest of news analysis, policy and opinion written from the heartland — as opposed to the MSM’s ubiquitous Beltway echo chambers — for grassroots leaders nationwide. More

What We Offer

On the Web

We provide solid conservative perspective on the most important issues, including analysis, opinion columns, headline summaries, memes, cartoons and much more.

Via Email

Choose our full-length Digest or our quick-reading Snapshot for a summary of important news. We also offer Cartoons & Memes on Monday and Alexander’s column on Wednesday.

Our Mission

The Patriot Post is steadfast in our mission to extend the endowment of Liberty to the next generation by advocating for individual rights and responsibilities, supporting the restoration of constitutional limits on government and the judiciary, and promoting free enterprise, national defense and traditional American values. We are a rock-solid conservative touchstone for the expanding ranks of grassroots Americans Patriots from all walks of life. Our mission and operation budgets are not financed by any political or special interest groups, and to protect our editorial integrity, we accept no advertising. We are sustained solely by you. Please support The Patriot Fund today!

★ PUBLIUS ★

“Our cause is noble; it is the cause of mankind!” —George Washington

The Patriot Post is protected speech, as enumerated in the First Amendment and enforced by the Second Amendment of the Constitution of the United States of America, in accordance with the endowed and unalienable Rights of All Mankind.

Copyright © 2021 The Patriot Post. All Rights Reserved.

The Patriot Post does not support Internet Explorer. We recommend installing the latest version of Microsoft Edge, Mozilla Firefox, or Google Chrome.