Rick Moran

Deciding not to decide – it’s a way for the Supreme Court to deal with a contentious issue by awaiting more clarifying opinions from the lower courts.

In a 7-1 decision regarding the closely watched affirmative action case Fisher v. University of Texas, the Supreme Court remanded the case back to the federal district court from which it came with instructions to give the matter greater scrutiny.

This is a partial victory for opponents of affirmative action because the lower court upheld the formula used by the university to admit minority candidates to its law school.

Wall Street Journal:

The court’s ruling on Fisher v. University of Texas was 7-1, with the majority opinion by Justice Anthony Kennedy. Justice Ruth Bader Ginsburg dissented, and Justice Elena Kagan, who was solicitor general when the Obama administration weighed in on the case, recused herself from the decision.

Justice Kennedy said the Fifth Circuit U.S. Court of Appeals made legal errors when it upheld the university program. The lower court should have scrutinized the university program more strictly, Justice Kennedy said.

The justices were ruling on the case of Abigail Fisher, who alleged the university rejected her because she is white.

Justice Kennedy said the Supreme Court wants the lower court to hear the case again “so that the admissions process can be considered and judged under a correct analysis.”

UT gives automatic entry to any Texas student who graduates in roughly the top 10% of his or her high-school class. That program was designed to maintain ethnic and racial diversity after a 1996 federal-appeals-court ruling restricted affirmative action in Texas and nearby states.

But after 2003, when the Supreme Court voted 5-4 to reinstate affirmative action, UT quickly supplemented its top-10% plan with an additional admissions pathway that allowed consideration of race and other factors beyond grades and test scores. UT said that pathway was designed for middle- or upper-class children of African-American and Hispanic professionals who attend more competitive schools.

While the top-10% plan vastly expanded the number of Texas high schools sending graduates to the state’s flagship campus, UT administrators frowned at having to accept applicants from less competitive high schools, whose top students often had lower test scores and poorer academic preparation than middle-tier students from leading suburban high schools that traditionally served as the university’s principal feeders.

The university said the presence of better-off minority students could help dispel stereotypes that could be perpetuated by the presence of those admitted through the top-10% program.

The problem for the university is that it is seeking to redefine the very concept of affirmative action, and in so doing, make admission to the school race-based regardless of economic circumstance. In questioning the lawyers during oral arguments, Justice Kennedy and Justice Alito put it succinctly:

“I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don’t think I’ve ever seen before,” said Justice Samuel Alito.

When UT’s lawyer, Gregory Garre, attempted to explain the admissions formula as a “holistic” review of individual attributes, Justice Kennedy heard something else.

“So what you’re saying is that what counts is race above all,” said Justice Kennedy, considered a swing vote on affirmative action. “You want underprivileged of a certain race and privileged of a certain race. So that’s race.”

Indeed. The 2003 decision  Gutter v Bollinger said that race could be only one factor in admissions policies. The school’s effort at a work around that used both race and economic circumstances to admit minority students but discriminate against whites of the same economic background was at issue.

The lower court could re-issue a similar opinion, addressing the issues in a more technically pleasing way to the high court. Or, it could split a few more hairs and send it back to SCOTUS for a more definitive decision.

Either way, we have not seen the last of this case – or of challenges to affirmative action.



Wmn04Ken07: Cowards.  This is not unexpected especially since  Roberts kowtowed to Obama on Obama care. Everything will be decided on the politics of the day. Today it is immigration. Tomorrow will be gay marriage and so it goes. They may earn the reputation for being the scaredy cat court.

reply SFLBIB: Maybe they need to be scared of making another Dred Scott or Roe decision.



quote from article: “Either way, we have not seen the last of this case – or of challenges to affirmative action.”

As long as self-styled “liberals” and “progressives” remain in power, we’ll unavoidably see more hare-brained defenses of so-called “affirmative” action: skin color is far more important to people who pursue the politics of divide and conquer than the content of people’s character.

In sum, you can always count on leftists to do whatever will harm America.

reply Felini: Or, God forbid, academics should be a major factor in determining college entrance.  Once upon a time in America, merit mattered.

reply SFLBIB: In view of the persistence and the very defiance of the law shown by the public university administrators who support this nonsense, minority protests against “racism” naturally come to be seen as a more productive activity than academic endeavor.


journey: The reality is that Asians are subjected to reverse discrimination.  They excel even when recently arrived immigrants, barely speaking English.  So all this so called discrimination against blacks just pure fantasy.  Heck, these programs have been in existence for over 60 years.  It is time to face reality, blacks/hispanics in general cannot compete on their own. So either these programs have to exist eternally or let the blacks/Hispanics compete on their own. This question will be settled when there is not enough whites to support this kind of nonsense.

reply SFLBIB: The problem all boils down to what Prof. Lino Graglia* said: “The many arguments once offered for racially preferential admission to institutions of higher education — biased tests, remedy, diversity, role models, etc. — have more recently come down to a single one: ‘We can’t have’ (i.e.,

it is not politically feasible to have) ‘an all white institution.’”

*Lino Graglia is professor of constitutional law at UT Austin.


reply journey: Can’t have majority white nations now, either.  All nothing but complete insanity.


Dlanor: Our betters are trying to force us to be less judgmental about race by requiring that our judgments be more rigorous in how race is factored. This is a circle that cannot be squared, no matter how strained the legal pretext. There are as many insoluables as there are solubles, but try telling that to law-objectifying, freedom-reducing, government-addicted Progs.


jdmeth: People want to go to “Prestige” universities so that they can have a prestige degree. How many of our presidents and federal judges went to Harvard? If you want equal opportunity only students who’s parents did not graduate from a prestige university should be allowed to attend one.

reply SFLBIB: Has no one explored the idea that if a student lacks academic credentials required at a top university, that he can go to a community college, establish his record, and then transfer to a four-year institution? NO. If the freshman class at a university doesn’t “look” like society, then minorities are not getting a college education, and racism is the problem, not a student’s lack of preparation. This is assumed true without a scintilla of evidence.


reply journey: Now they are heading toward the more extreme.  Instead of looking at just race, more lower economic level students should be let in meaning more ghetto blacks and uneducated Hispanics (gangs).  It’s like let’s see how far we can push insanity.
It is written in little barrycare that more Hispanics and blacks have to be admitted to medical schools.  Now it really heading toward dangerous territory.




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