Clarence Thomas would have voted to eliminate affirmative action.
Clarence Thomas would have voted to eliminate affirmative action

By George E. Curry
NNPA Editor-in-Chief

WASHINGTON (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 burden 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 admissions 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.

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

“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 admissions 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 in Grutter, permitting the narrowly tailored use of race in college admissions.

In his concurring opinion, Thomas said, “I write separately to explain that I would overrule 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, recused 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 the 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.”

Approximately 75 percent of the University of Texas’ admissions are filled through the Top 10 Percent Plan. In its court filings, the university revealed that in 2008, when Fisher sought admission, 81 percent of all freshmen and 92 percent of all Texas residents admitted as freshmen, were Top 10 Percent applicants, leaving only 841 slots to be filled by non-Top 10 Percent students.

Moreover, in its Supreme Court brief, the University of Texas said Fisher would not have been accepted into the university even if it had never considered the race of any applicant.

On page 14 of its “Brief of Opposition,” the university said: “The undisputed evidence demonstrated that Fisher would not have been offered fall admission in 2008 even if she had scored a perfect ‘6’ on her PAI – the portion of the admissions process where race is considered as ‘a factor of a factor of a factor.’ Although Fisher theoretically could have been admitted through the summer admissions process, the reality is that her academic credentials could not overcome the particularly stiff competition among in-state applicants who graduated outside the top 10% of their high school class.”

After subtracting the admission places for those automatically accepted under the Top 10 Percent Plan, the University of Texas said, Fisher was one of approximately 16,000 students competing for 1,216 fall admission slots available for students who did not finish in the top 10 percent of their class.

“The acceptance rate for those applicants was only 7.6% – lower than Harvard’s undergraduate acceptance rate for fall 2008,” the university stated.

The percentage plans adopted by Texas, Washington and Florida have proven to be a poor substitute for affirmative action, according to a study by the U.S. Commission on Civil Rights.

In a 2002 report titled, “Beyond Percentage Plans: The Challenge of Equal Opportunity in Higher Education,” the commission observed: “Can percentage plans achieve the goal of equal education opportunity? Based on the analysis performed here, the answer unfortunately is no.”

After affirmative action was outlawed in California, Texas and Florida, the U.S. Commission on Civil Rights studied percentage plans in the three states that guaranteed a certain percentage of students college admission.

The report concluded, “Percentage plans alone do not improve diversity by reaching underrepresented minority groups and will only have their desired effect if affirmative action and other supplemental recruitment, admissions, and academic support programs remain in place.”

Blacks make up 12 percent of Texas’ population and Hispanics are about 38 percent. In recent years, about a quarter of the freshman class at the University of Texas was Hispanic and 6 percent African American.

Like all state universities in the South and many in the North, the University of Texas has struggled get past a legacy of racism.

As the Advancement Projected noted in its amici curiae (friend-of-the-court) brief, “UT excluded blacks from living in the on-campus dormitories designated for whites and specifically forbade all black students from entering the living quarters of white women.

It continued, “UT established separate and inferior residential housing for blacks. UT barred black students from intercollegiate athletics, excluded them from extracurricular activities such as music and theater, and permitted segregated fraternities and sororities. UT even banned black students from using the same bathroom facilities as whites.”

The University of Texas case will not end the Supreme Court’s examination of affirmative action. It has already accepted a case for the next term, Schuette v. Coalition to Defend Affirmative Action, a Michigan case that tests the constitutionality of a voter-approved ballot measure that ordered the state government to stop using race as a factor in college admissions.