At the end of its last term, the Supreme Court remanded Fisher v. Texas to the Fifth Circuit, instructing the court to apply “strict scrutiny” rather than simply bow to all of the university’s assertions about its use of racial preferences. The Fifth Circuit will again hear the case and Cato Institute has submitted an excellent amicus brief. Ilya Shapiro discusses it here.
He writes:
We then point out how UT-Austin has failed to meet its factual burden. It hasn’t established a factual basis to explain its conception of diversity (What will the use of race provide?); the necessity of its racial classifications (Why are there no race-neutral means available?); nor the reasoning behind the extent of its preferences (Why do only some racial classes receive preferences?). Because UT-Austin has failed so miserably to meet its factual burden, it’s clear that its admissions program is precisely what the strong-basis-in-evidence requirement is meant to eliminate: an arbitrary and amorphous use of racial classifications and a violation of the constitutional guarantee that every one of us, student or not, be treated as an individual with full legal equality.