In its Fisher v. Texas decision, the Supreme Court remanded the case to the Fifth Circuit, instructing it to employ the standard of strict scrutiny (as opposed to lazy deference) to the University of Texas’ racial preference system. The Fifth Circuit reheard the arguments and earlier this week released a 2-1 decision in favor of the university. But was there any strict scrutiny? Evidently not. The two judges in the majority bought the university’s claim that it needs to have “critical masses” of students from “underrepresented minority groups” in order for all students to enjoy the supposed educational gains that only arise under those conditions. The majority paid no attention to the arguments that preferences have some serious costs, which should figure in strict scrutiny analysis.
In today’s Pope Center piece, Jennifer Gratz examines the Fifth Circuit’s decision and finds it weak and evasive (as did the dissenter, Judge Emilio Garza).
So the case continues. The ideal outcome would be for the Supreme Court to cut the Gordian Knot and clearly rule against the use of racial preferences.