We confess to being nonplussed by the Supreme Court’s nondecision Monday in what we expected to be a landmark ruling on the not-so-colorblind admissions policy at the University of Texas.
During oral arguments last October in the case of Fisher v. University of Texas, it appeared to veteran court watchers that a majority of justices were prepared to hold unconstitutional the university’s policy of taking race into account in its admissions process.
Had the justices done so Monday, they would have overturned the high court’s 2003 decision, Grutter v. Bollinger, which held racial preferences OK in college admissions for purposes of promoting diversity, provided that complexion is not the only “plus factor” considered.
However, in its 7-1 ruling, the justices decided not to decide the merits of the Texas case but to vacate the decision of the 5th U.S. Circuit Court of Appeals in New Orleans upholding the university’s race-conscious admission’s process.
Abigail Fisher, a white suburban Houston student, asserted she was passed over by the university while minority students with similar grades and test scores were admitted to UT’s main Austin campus because they were nonwhite.
Writing for the majority, Justice Anthony Kennedy affirmed that Grutter required the 5th Circuit to give “substantial deference” to the university in defining a compelling interest in diversity’s benefits.
But the lower court erred, he continued, in being similarly deferential to the nationally respected university over the methodology by which it achieved that diversity; that “critical mass,” as the university termed it, of minority students.
The lower court’s decision in favor of the university “was incorrect,” wrote Justice Kennedy. As such, the Supreme Court vacated the 5th Circuit’s decision, returning the Texas case to the lower court for reconsideration.
Next time around, the high court’s majority agreed, the federal appeals court must hold the university’s admissions process — which uses race as one of so many “plus factors” in who gets to enroll — to the “demanding burden of strict scrutiny.”
That means the university must make a persuasive case to the lower court that “no workable race-neutral alternatives would produce the educational benefits of diversity.”
If the 5th Circuit holds the University of Texas to that standard, it is almost certain the lower court will strike down UT’s race-conscious admissions policy. That’s because Texas has a race-neutral law that clearly has increased diversity on the state’s campuses.
Enacted in 1997, the “Top Ten Percent Rule” guarantees that students in the Lone Star State who graduate in the top 10 percent of their high school class earn automatic admission to all state-funded universities — including the University of Texas.
The Top Ten Percent Rule has done much to promote the diversity the University of Texas desires, but without discriminating against applicants who couldn’t help being born white.
That’s the kind of colorblind approach to college admissions that the nation’s courts should embrace and that Americans of all races can, and should, support.
From the Orange County Register