George Leef spells out for Forbes readers details of the U.S. Supreme Court’s latest chance to address racial preferences.
On May 21, the Supreme Court held a conference to discuss whether or not to accept the Fisher case—again. At this time, I don’t know the decision, but I do know that a seemingly strange mixture of liberals and conservatives want the Court to take the appeal.
The case first came before the Court in 2013, where the justices reversed the Fifth Circuit’s ruling in favor of the racial preferences used by the University of Texas (UT) in its admissions. Justice Kennedy’s opinion stressed that the lower court had been far too deferential towards the university’s policy of reserving some places just for students in certain racial and ethnic groups.
Instead of applying “strict scrutiny” as courts must do when they consider public policies that categorize people by race, the Fifth Circuit had just breezily accepted the university’s claims, Justice Kennedy observed. So the case was remanded to that court for a rehearing.
The second hearing at the Fifth Circuit led to the same result—a decision in favor of UT. What’s more, the court’s approach was really no different. Again, a majority of the three-judge panel said that the university’s racial preferences were all right because school officials thought they were important.
But in dissent, Judge Emilio Garza wrote that the decision shouldn’t stand because it again failed to employ strict scrutiny. He wrote,” Although the University has articulated its diversity goal as a ‘critical mass,’ surprisingly it has failed to define this term in any objective manner. Accordingly, it is impossible to determine whether the University’s use of racial classifications in its admissions process is narrowly tailored to its stated goal – essentially, its ends remain unknown.”
In my view, Judge Garza exposed the fatal weakness in the decision, but we will have to wait to see if at least four members of the Supreme Court agree and vote to rehear the case.
