Fifth Circuit defies Supreme Court on Racial Preferences

The Left loves racial preferences so much its judges will even defy their ultimate boss, the U.S. Supreme Court, to keep them.  The University of Texas prefers racial minorities over white students in its admission policy.  It does this by using lower standards for racial minorities.  Why is this bad? It’s bad because it sets up minority students admitted under the lower standards for failure later on in their journey through life. That failure often comes while still in college when they either flunk out or learn so little that they have trouble gaining employment later or keeping employment once gained.  This leads to demoralization and resentment, setting them up for further failure.  In other words, to make liberals feel good about themselves it’s necessary to hand minorities the potential for life long problems that will diminish their future success and happiness.

If minorities who cannot meet the same standards as other students were instead admitted only after they improved their academic ability up to the same standards as others, or admitted to a different higher education environment or a trade school where they could experience success instead of failure, their future lives would be more productive and happier.

In the first case of Fisher v. University of Texas the Supremes decided 7-1 [Ginsburg dissenting, Hagan not participating] in reversing and remanding back to the Fifth Circuit, saying that no deference should be given to the University administrators in their contention that they had sought the least restrictive means to accomplish their goal of admitting more minority students because they simply cannot be trusted to be reasonable [or truthful they might have added].

Justice Kennedy wrote the majority opinion, saying thus:

The parties asked the Court to review whether the judgment below was consistent with “this Court’s decisions interpreting the Equal Protection Clause of the Four- teenth Amendment, including Grutter v. Bollinger, 539 U. S. 306 (2003).” The Court concludes that the [5th Circuit] Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 305 (1978) (opinion of Powell, J.).

Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court’s grant of summary judgment to the University was incorrect. That decision is vacated, and the case is remanded for further proceedings. 

In the present case of Fisher v. Univ. of Tex. at Austin , two judges on a 3-judge panel simply reinstated their previous decision that the Supreme Court vacated, essentially thumbing their noses at the Supreme Court.  Of course, they didn’t do it so overtly. They wrote a 43-page opinion that attempts to obfuscate what they’ve done.  No intelligent person is fooled by that, however. Especially not the third judge on the panel, Emilio M. Garza, who begins his dissenting opinion as follows:

By holding that the University’s use of racial classifications is narrowly tailored, the majority continues to defer impermissibly to the University’s claims. This deference is squarely at odds with the central lesson of Fisher. A proper strict scrutiny analysis, affording the University “no deference” on its narrow tailoring claims, compels the conclusion that the University’s race- conscious admissions process does not survive strict scrutiny.

Judge Garza’s dissent is well worth reading by anyone, lawyer or non-lawyer.  It begins on page 44 of the current Fifth Circuit opinion cited above.  In my estimation, it approaches the quality and importance of the dissent by Justice John Marshall Harlan in Plessy v. Ferguson.


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