Disappointing Decision in Fisher

by Roger Clegg

The Supreme Court today upheld the University of Texas’s use of racial preferences in student admissions. The vote was 4-3, with Justice Kennedy writing the majority opinion,  joined by Justices Breyer, Ginsburg, and Sotomayor (Justice Kagan was recused). Justice Alito wrote a powerful, 51-page dissent, which he read from the bench.

Needless to say, the decision is disappointing, for all the reasons that Justice Alito explains. The discrimination that is upheld is untenable in our increasingly multiracial, multiethnic society — indeed, a society where individual Americans are more and more likely to be multiracial and multiethnic, and where the victims of this politically correct discrimination are more and more likely to be members of racial and ethnic minority groups.

Still, today’s decision is a narrow one. 

As the Court says, UT’s program “is sui generis” and the way the case was litigated “may limit its value for prospective guidance.”  A big reason for this, of course, is the school’s use of a Top Ten Percent plan, which was not challenged. Rather surprisingly, by the way, Justice Kennedy seems to suggest that perhaps it should have been. 

Justice Kennedy also warns the university repeatedly in his opinion that it has an ongoing duty to minimize its use of race. And race is, the Court says, only a factor of a factor of a factor at UT; was considered contextually; does not automatically help members of any group; and could in theory help the members of any group, including whites and Asian Americans.

Now, this may all be false as a matter of what really happens at the University of Texas, but other schools are now obliged to jump through the hoops that the Court says UT jumped through. More broadly, any school’s use of racial preferences must pass “strict scrutiny” and bear the burden of proving that a nonracial approach would not promote its interest in the “educational benefits of diversity” about as well.

And so the Court’s decision leaves plenty of room for future challenges to racial-preference policies at other schools, and at UT itself for that matter. It’s interesting that in the run-up to the decision, there was much discussion among liberals that maybe indeed there are better approaches to student admissions that UT’s. Here’s hoping that those discussions continue, prodded along by lawsuits and FOIA requests to ensure that all Justice Kennedy’s hoops are being jumped through.

So the challenges to racial preferences will continue; cases against Harvard and the University of North Carolina–Chapel Hill that had been on hold will now proceed. The struggle goes on.

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