Court Missed Opportunity in Fisher Case

The Supreme Court, in a case heard by eight Justices (Justice Kagan recused
herself), has issued its decision involving the admissions policies of the
University of Texas. In a 7-1 decision, the court sent the case back to the
Fifth Circuit Court of Appeals because that court did not apply the legal
standard of "strict scrutiny." In short, "strict scrutiny" means that whenever
a governmental entity, in this case the University of Texas, uses race as a
reason for its actions, that kind of policy must be very closely scrutinized
since it is inherently suspect. Abigail Fisher applied for admission to the
University of Texas but was rejected presumably, in part, because she would not
add to the racial diversity of the campus since she was white. She claimed that
she was denied the opportunity to compete on an equal basis for admissions and
that the university violated the equal protection clause of the Fourteenth
Amendment to the Constitution.

This is not the first time that the University of Texas has come before the
court. In 1946, a black applicant, Herman Sweatt, sought admission to the
University of Texas Law School. He was rejected because of his race despite an
attempt by the University of Texas to create a separate law school for blacks in
order to avoid admitting him. The case went all the way to the Supreme Court and
in 1949 the court struck down Texas’ racial-based policy. Now, 67 years
after Sweatt, the court in Fisher was again dealing with the University of Texas
over its admissions policies. But ironically, this time the issue was not the
excluding of applicants because of race, but the affirmative including
of students because of race. What did the court do? What should it have done?

What the majority opinion in Fisher did was to regard the reasoning of three
earlier cases "as given for purposes of deciding this case." Those earlier cases
were the University of California v. Bakke, and the two University of Michigan
cases, Gratz v. Bollinger and Grutter v. Bollinger. When Justice AnthonyKennedy
and six others looked at those cases, which contain the current law on the
subject of race and admissions, they concluded that the Fifth Circuit Court of
Appeals had failed to strictly scrutinize university policies in a way required
by the those cases. Now, the Fifth Circuit must apply strict scrutiny when it
comes to admissions policies of the university which had used race in its
admission decision. So the majority opinion is therefore a kind of technical
remand of the case to the lower Circuit Court.

What should the high court have done? It should have followed the reasoning of a
fine concurring opinion by Justice Clarence Thomas. Justice Thomas states
clearly "that a State’s use of race in higher education admissions decisions is
categorically prohibited by the Equal Protection Clause" and that "every time
the government places citizens on racial registers and makes race relevant to
the provision of burdens or benefits, it demeans us all." Thomas stands firmly
against the assertion by the University of Texas that its discrimination is
"benign." "I think the lesson of history is clear enough," he wrote. "Racial
discrimination is never benign." Courageously, Thomas continues, "There can be
no doubt that the University’s discrimination injures white and Asian applicants
who are denied admission because of their race." In the process, such a racially
motivated admission policy "stamps [blacks and Hispanics] with a badge of
inferiority. It taints the accomplishments of all those who are admitted as a
result of racial discrimination." Moreover, those minority students who were
admitted on the basis of merit cannot be distinguished "from the ones whose race
played a role in their admission." Therefore, their admissions and their
achievements are tainted as well.

The answer that the court should have given, and which it may still give, is the
answer Chief Justice Roberts gave in an earlier case when he said that the way
to stop discrimination on the basis of race is to stop discriminating on the
basis of race.

— Dr. John A. Sparks is the retired dean of the Calderwood School of Arts &
Letters, Grove City College, Grove City, Pa., and teaches constitutional history
and business Law on a part-time basis. He is a member of the State Bars of
Michigan and Pennsylvania and is a fellow for educational policy for [2]The
Center for Vision & Values at Grove City College.

© 2013 by The Center for Vision & Values at Grove City College. The views &
expressed herein may, but do not necessarily, reflect the views of Grove City

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