Supreme Court sends Affirmative Action case back to lower courts

Supreme Court sends Affirmative Action case back to lower courts

Clarence Thomas would have voted to eliminate affirmative action.

Ruth Bader Ginsburg was the lone dissenter in affirmative action case.

By George E. Curry

WASHINGTON, D.C.  (NNPA) – The United States Supreme Court sidestepped making a decision on whether a University of Texas admissions plan that allows the limited consideration of race is unconstitutional by remanding the case to the U.S. Court of Appeals for the 5th Circuit for further review.

On Monday, the court voted 7-1 to send the case back to the 5th Circuit in New Orleans. Writing for the majority, Justice Anthony Kennedy said the lower court did not subject the University of Texas to the highest standard of judicial scrutiny.

“…Strict scrutiny imposes on the university the ultimate bur-den of demonstrating, before turning to racial classifications, that available, workable, race-neutral alternatives do not suffice,” Kennedy wrote. “Rather than perform this searching examination, however, the Court of Appeals held petitioner could challenge only ‘whether [the University’s] decision to reintroduce race as a factor in ad-missions was made in good faith.”

Ruth Bader Ginsburg, who wanted to uphold the lower court’s decision supporting the University of Texas, was the lone dissenter.

“The University of Texas at Austin (University) is candid about what it is endeavoring to do: It seeks to achieve student-body diversity through an ad-missions policy patterned after the Harvard plan referenced as exemplary in Justice Powell’s opinion in Regents of Univ. of Cal. V. Bakke,” she wrote. “The University has steered clear of a quota system like the one struck down in Bakke, which excluded all nonminority candidates from competition for a fixed number of seats.”

She added, “And like so many educational institutions across the Nation, the University has taken care to follow the model approved by the Court in Grutter v. Bollinger.”

Clarence Thomas was the only justice who went on record saying he would have voted to overturn the court’s 2003 decision inGrutter, permitting the narrowly tailored use of race in college admissions.

In his concurring opinion, Thomas said, “I write separately to explain that I would over-rule Grutter v. Bollinger and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.”

Justice Elena Kagan, a former Solicitor General, rescued herself, presumably because she had worked on the case earlier.

University of Texas President Bill Powers said Monday in a statement, “We’re encouraged by the Supreme Court’s ruling in this case. We will continue to defend the University’s admission policy on remand in the lower court under the strict standards that the Court first articulated in the Bakke case, reaffirmed in the Grutter case, and laid out again today. We believe the University’s policy fully satisfies those standards.

“We remain committed to assembling a student body at The University of Texas at Austin that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the Court. Today’s ruling will have no impact on admissions decisions we have already made or any immediate impact on our holistic admissions policies.”

The case grew out of a decision by Abigail Fisher, a white Texas resident, to file suit against the University of Texas after she was turned down for admission for the 2008 term. Fisher, who later graduated from Louisiana State University, claimed the university had violated the equal protection clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964 because it allowed the consideration of race in evaluating applicants to the university.

Fisher joined a growing list of whites who have turned the Equal Protection Clause of 14th Amendment on its head. The amendment was passed in 1868 to protect former slaves from Southern lawmakers. It states that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” Whites are using the amendment to portray themselves as victims.

Both the district and federal appeals courts had dismissed Fisher’s claim before the Supreme Court agreed to take the case.

Until 1996, the University of Texas had taken a student’s race into account in admissions. However, in Hopwood v. Texas, the same federal appeals court that will now rehear Fisher, ruled the practice unconstitutional, a ruling that would be later superseded by the Supreme Court’s Grutter ruling permitting the use of race when narrowly tailored.

After the Hopwood decision, the university added a Personal Achievement Index (PAI) to go along with its Academic Index. The PAI was part of a holistic review of applicants, looking at such factors as leadership, extracurricular activities, work experience, socio-economic status, whether there was only one parent in the home, language spoken in the home and race.

The PAI was “partially designed to increase minority enrollment,” the university said. However, it said, “Race, by itself, is not given any numerical value.”