The Supreme Court issued a cynical opinion in its ruling against affirmative action in Fisher v. University of Texas. It sent coded legal instructions to the lower appeals court on how to strike down the University of Texas' diversity program by using "strict scrutiny."
The ruling is bad news for minorities applying to top universities to get ahead in life.
Strict scrutiny is like a strong dose of cyanide. Nothing can survive it. Telling the 5th U.S. Circuit Court of Appeals to use this approach against the program, which has been operating for nine years, was like winking and saying "you know what to do."
The 5th Circuit already reviewed the university's affirmative action program in 2011 and upheld it, saying it gave deference to UT's admissions program. The school uses race as one consideration in admissions and has successfully created freshmen classes where 30 percent of students are black or Latino.
But the message from the high court was clear. For example, it said that the diversity program must be "narrowly tailored" to achieve its goal. It said that the lower court should see if the school could "achieve sufficient diversity without using racial classifications." This circular reasoning is saying the school must achieve the result without the defining element. It's the same as asking a city to eliminate crime without having a list of crimes or saying what's against the law.
Furthermore the school cannot:
The justices didn't want to be seen ruling against minorities in education, so it assigned the 5th Circuit to do its dirty work.
The University of Texas has been striving since 1996 to get its diversity program right. Today it uses a "personal achievement index" to measure a student's leadership, work experience, awards, extracurricular activities, community service, foreign language ability and socioeconomic condition.
After several court rulings and a new state law, it started to use race as a consideration in 2004. The decision was based on a study showing that few classes had significant enrollment by racial minorities.
But in 2008 Abigail Fisher, who is white, sued the school charging that she was denied admission based on her race. She argued that her rights under the Equal Protection clause of the constitution were violated. It resonated with the Supreme Court which said, "Any racial classification must meet strict scrutiny." It is ironic that the court used a principle that protects minorities to rule against a program that benefits minorities.
This puts the university in a hall of mirrors: to demonstrate that there weren't any race-neutral alternatives that could have been used -- in other words, finding a "nonracial approach" to solving a racial problem.
Clarence Thomas was especially shameless in his separate opinion, saying, "As should be obvious, there is nothing 'pressing' or 'necessary' about obtaining whatever educational benefits may flow from racial diversity." This is very convenient for a minority lawyer to say now that he's got a lifetime job on the Supreme Court.
Thomas said that the university must show a "compelling interest" equal to preventing anarchy or violence to justify its program. He says if it were up to him, he would pull the ladder up and strike down the university's diversity program. Governor George Wallace, who called out the National Guard to prevent black students from entering the University of Alabama in 1963, would be proud.
Content concerning legal matters is for informational purposes only, and should not be relied upon in making legal decisions or assessing your legal risks. Always consult a licensed attorney in the appropriate jurisdiction before taking any course of action that may affect your legal rights.
Follow Larry Bodine on Twitter: www.twitter.com/larrybodine