Supreme Court Upholds Racial Preferences over Scathing Conservative Dissents

Abigail Fisher Susan Walsh AP
Susan Walsh/AP

WASHINGTON, D.C.—Thursday the Supreme Court in Fisher v. University of Texas at Austin effectively repudiated previous decisions, upholding the use of racial preferences in public college admissions, against the vigorous and energetic dissents of three justices.

The Equal Protection Clause of the Fourteenth Amendment commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Conservatives have always maintained that this means the government can never prefer one person’s skin color over another, discriminating against some to help others. But in the 1970s a liberal majority of the Supreme Court upheld various racial preferences under the euphemistic term “affirmative action.”

In 2003, the Supreme Court in Grutter v. Bollinger held 5-4 that government-run universities can therefore use racially discriminatory policies to help racial minority students over white students, with four justices—three conservatives plus moderate Justice Anthony Kennedy—in dissent.

The University of Texas (UT) has a racial-preferences program, whereby they automatically admit any student regardless of race who is in the top ten percent of their high school class if that high school is in Texas, but then uses race as an added bonus for all other applicants, if that student is black or Hispanic (but not any other type of racial minority).

This is the second time that Abigail Fisher—who was denied admission to the University of Texas (UT)—has appeared before the U.S. Supreme Court over this matter. She won her first round before the justices in 2013 with a narrow 5-3 decision analyzed by Breitbart News.

The Court held that laws discriminating on the basis of race must satisfy strict scrutiny, whereby the government must show that the law is narrowly tailored to achieve a compelling national interest. The Court sent the matter back to the lower courts for a new hearing and re-evaluation under a true “strict scrutiny” framework.

Justice Antonin Scalia has since passed away and Justice Elena Kagan was recused (as she was during the first Fisher case), so only seven justices decided this case. In this second round, Justice Kennedy seemed to take the opposite view from what he held in 2013, and now became the decisive vote in a 4-3 decision in favor of racial preferences.

Kennedy wrote that UT’s admissions program is “unlike other approaches to college admissions considered [previously] by this Court” because “it combines holistic review with a percentage plan.”

The four-justice majority excused some of UT’s failing to prove part of its case, reasoning that UT “cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained.”

Kennedy then went on to refuse giving colleges a blank check in the future, adding, “On the other hand, asserting an interest in the educational benefits of diversity writ large is insufficient. A university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.”

The Court majority concluded that UT “articulated concrete and precise goals,” holding that these amount to a “compelling interest” satisfying part of strict scrutiny.

The Court further held that “the record itself contains significant evidence, both statistical and anecdotal,” supporting this program. The Court reasoned that various statistics “show that the consideration of race has had a meaningful, if still limited, effect on the diversity of the University’s freshman class.”

Kennedy concluded that this satisfies the second prong of strict scrutiny, writing, “The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality.”

Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito strenuously dissented from the four-justice majority opinion.

Justice Thomas wrote a short dissent in addition to the main dissent, to emphasize:

I write separately to reaffirm that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause. The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all. That constitutional imperative does not change in the face of a faddish theory that racial discrimination may produce educational benefits. The Court was wrong to hold otherwise in Grutter v. Bollinger. I would overrule Grutter and reverse the Fifth Circuit’s judgment. (citations and editing marks omitted)

The principal dissent was a massive 51-page opinion written by Alito, joined in full by both Roberts and Thomas. Alito began:

Something strange has happened since our prior decision in this case. In that decision, we held that strict scrutiny requires [UT] to show that its use of race and ethnicity in making admissions decisions serves compelling interests and that its plan is narrowly tailored to achieve these ends. [We rejected] the argument that we should defer to UT’s judgment on these matters… UT failed to do what our prior decision demanded. The University still has not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking “the educational benefits of diversity” is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests. This is nothing less than the plea for deference that we emphatically rejected in our prior decision. Today, however, the Court inexplicably grants that request.

“To the extent that UT has ever moved beyond a plea for deference and identified the relevant interests in more specific terms, its efforts have been shifting, unpersuasive, and, at times, less than candid,” Alito continued. He goes through a litany of specifics, then notes that Asian-Americans are racial minorities that do not get special treatment under UT’s plan (only blacks and Hispanics do). To the contrary, UT’s racial-preference policy actually “discriminates against those students,” but that UT never gives an excuse for its selective racial focus.

Alito went on with dozens of pages of analysis dismantling UT’s arguments and the Court’s majority opinion. Then, still joined by Roberts and Thomas, Alito concluded his dissent:

It is important to understand what is and what is not at stake in this case. What is not at stake is whether UT or any other university may adopt an admissions plan that results in a student body with a broad representation of students from all racial and ethnic groups. UT previously had a race-neutral plan that it claimed had “effectively compensated for the loss of affirmative action,” and UT could have taken other steps that would have increased the diversity of its admitted students without taking race into account.

What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve “the educational benefits of diversity,” without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives. Even though UT has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though UT’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that UT has met its heavy burden. This conclusion is remarkable—and remarkably wrong.

Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.


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