On June 23, the U.S. Supreme Court handed down a four-to-three decision in Fisher v. University of Texas at Austin. The majority opinion, written by Justice Kennedy, gave the victory in the case to the University of Texas. The decision allows the university to continue to grant strong preference in admissions to minority students based on their race.
The National Association of Scholars deeply regrets the Court’s final decision in this case, which has endured more than eight years of litigation. Along with many others, we had hoped the Court would at last hold the University of Texas to the standard of “strict scrutiny” for its use of racial classifications. Instead, Justice Kennedy’s opinion cobbles together rationalizations, excuses, averted glances, circumventions, and just-so stories that add up to permitting the University of Texas to persist in racial discrimination among applicants.
Racial Favoritism
Kennedy’s twenty-page opinion, also signed by Justices Ginsburg, Breyer, and Sotomayor, ends the case in which Abigail Fisher claimed that she was unjustly refused admission to the University. Her complaint centered on the University’s practice of using racial preferences among its criteria for selecting students among those who were not automatically admitted under Texas’s so-called “Top Ten Percent Plan.” That plan grants students graduating in the top ten percent of each Texas high school class automatic admission to the state’s public universities. Fisher, who is white, finished high school just outside the top ten percent of her class. She then applied for regular admission. The University, however, used a system of racial favoritism to select among students in this category.
The U.S. Supreme Court has now certified that this system of favoritism passes muster with the Court’s previous rulings on when race can and cannot be used in distributing public benefits. The Court’s “strict scrutiny” rule generally restricts the use of racial classifications to cases where there is a “compelling public interest” and where no less intrusive measure exists to achieve that interest.
The Make-Believe University
But there is no compelling public interest for the use of racial classifications or racial preferences in admissions at the University of Texas. And other means of increasing the numbers of black and Hispanic enrollees are easily at hand. Because these facts are plain, Justice Kennedy and his majority colleagues enrolled themselves in a make-believe university where:
The university employs racial preferences not for the sake of increasing black and Hispanic enrollment but to obtain “the educational benefits that flow from student body diversity.”
The university does not employ numerical quotas, but seeks to maximize “diversity.”
The university does not have “elusory or amorphous” goals in its racial preference policy, but has “articulated concrete and precise goals,” these being:
Ending stereotypes
Promoting “cross-racial understanding”
Preparing students for “an increasingly diverse workforce and society”
Cultivating leaders with “legitimacy in the eyes of the citizenry”
The university adopted so-called “holistic review” not to evade accountability for using race in admissions but because none of the “alternatives was a workable means of attaining the University’s educational goals.”
Outside the make-believe of the Supreme Court’s sorry record of jurisprudence on race in college admissions, these claims are sheer nonsense. The University of Texas uses race in college admissions simply for the advantages that racial politics provides.