The Supreme Court Was Anything But Affirmative in Affirmative Action Case

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The Supreme Court kicked FISHER v. UNIVERSITY OF TEXAS AT AUSTIN ET AL , known to us as the affirmative action case, back to the lower court today, by a vote of 7-1.  Justice Kagan recused herself.  Justice Ginsberg was the single dissenter.

In this case, the plaintiff Abigail Fisher objected to the University of Texas’ admissions policy which awarded 75% of places to any student in the top 10 per cent of their class.  The remaining 25% of places were awarded by consideration of a number of factors including race.

It’s also worth noting that Abigail Fisher didn’t initiate this case.  Ultimately, she was the poster child for Edward Blum,  who basically has issues with any law that seeks to challenge white privilege.

One of the reasons this is a weak case, lies in the fact that Fisher asserted she was denied a spot at the university based on race, while oddly, other white students were admitted to the school under the same criteria for those remaining places. By virtue of this being a weak case, one might have concluded that the Supreme Court wanted to weigh in on affirmative action.  However, by kicking the case back to the lower court with instructions, the SCOTUS majority delegated the “dirty work” to the lower court.

Justice Kennedy wrote the majority opinion, vacating the ruling and sending it back to the lower court on procedural grounds.

Simply put, the Supreme Court played on a technicality by saying the lower court didn’t completely hold the university to the “strict scrutiny standard” as required under other cases (Grutter and Bakke).

The ruling explains that the existing standard involves two steps in deciding whether admissions policies are constitutional. The Court gives some leeway to the school on the first step, which is to see that the goal of diversity is constitutional.  The Court gives no leeway on the second step, which is for the school to decide there’s no better way to achieve diversity without trampling on white privilege – excuse me they mean students’ rights.  The Supreme Court told the lower court to see whether the policy was narrowly tailored, enough to constitutionally achieve a diverse student body and take baby steps to reinstate white privilege. In other words, the Supreme Court didn’t really want to rule on this case, so they sent it back to the lower court with instructions that could potentially result in a further narrowing of affirmative action.

In her dissenting opinion, Justice Ginsberg identified the flawed reasoning in Fisher’s case.

Petitioner urges that Texas’ Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. See Gratz, 539 U. S., at 303-304, n. 10 (dissenting opinion). As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.

It appears to be emulating Thurgood Marshall’s strategy to reverse Jim Crow in Brown vs. Topeka Board of Education – except in reverse. Marshall brought several cases to the courts nibbling at the underpinnings of Jim Crow.  By the time, Brown reached the Supreme Court; the court had to follow where all the precedents pointed. Are we seeing the same again?

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