The Supreme Court has sent Fisher v. Texas back to the Court of Appeals. In this piece, George Leef of the Pope Center for Higher Education Policy writes about the decision and what’s ahead. The case involves white student Abigail Fisher, who was rejected by the University of Texas. She claims she was rejected because of the university’s racial preferences policy. Leef writes:
As the case proceeds, the burden of proof will be on the University of Texas to show that its admissions policy is truly necessary to produce “diversity” and that it has positive educational results. Undoubtedly, the university will try to conjure up “research” purporting to show that diversity—i.e., augmenting the numbers of black and Hispanic students who would have earned admission without preferences by adding some who wouldn’t have—is wonderful.
The lower courts will probably be snowed under with claims and counter-claims about diversity, just as the Supreme Court was with the large number of amicus briefs filed in Fisher.
Speaking of those briefs, only Justice Clarence Thomas made any reference to them in his concurring opinion. That opinion is worth careful reading.
To begin with, Thomas would have overruled Grutter and declared that the government may not use race at all in higher education admissions. Why?
Because, he writes, “Government must treat citizens as individuals, not as members of racial, ethnic, or religious groups.” That is exactly what the challenged admission policies do—they label students as “representatives” of whatever group they are said to belong to—and then treat some as more desirable than others. The Fourteenth Amendment does not allow that, no matter how important the reasons for doing so might seem to be.
Treating people as individuals — a novel idea these days.
