Overdue for Strict Scrutiny: Race Preferences and Cronyism at the University of Texas

Ironies abound in the long-running affirmative action case of Fisher v. University of Texas at Austin, which has come before the U.S. Supreme Court (again) following its 2013 remand to the U.S. Court of Appeals for the Fifth Circuit for reconsideration.

Abigail Fisher’s cert petition is scheduled for conference later this month. In Fisher I, the Supreme Court decided by a vote of 7 to 1 (Justice Kagan abstaining) that the Fifth Circuit had failed to apply correctly Grutter v. Bollinger (2003), the inscrutable 5 to 4 decision that upheld the University of Michigan’s use of racial preferences in admissions based on Justice O’Connor’s controversial notion that, if necessary, race could be used as a factor to achieve the mix of minority students necessary to realize the perceived “educational benefits” of diversity.

Specifically, the Court in Fisher I held that the Fifth Circuit, in ruling against Abigail Fisher’s challenge to the race-conscious “holistic” admissions process at the University of Texas, to which she applied for undergraduate admission in 2008, had inappropriately deferred to the university (at one point expressly presuming that it had “acted in good faith”) and had not applied the demanding, “strict scrutiny” standard to require the school to prove that its consideration of race was “narrowly tailored” and “necessary.”

It is not only ironic but unfortunate that the High Court, instead of simply ruling in Fisher’s favor in 2013, sent the case back to the appeals court. The strict scrutiny standard used to review the constitutionality of race discrimination is nearly always “fatal in fact.” Grutter—an outlier decision when it was issued—was the sole exception. Many observers had hoped Grutter would be overruled, particularly since, following that 2003 decision, Justice Alito (a critic of affirmative action) replaced the pivotal Justice O’Connor.

That Justice Kennedy, who dissented in Grutter, wrote the decision in Fisher I made the irony even more poignant.

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