07/17/2014 10:05 am ET Updated Sep 16, 2014

5th Circuit Thumbs Its Nose at U.S. Supreme Court in Racial Preferences Case

The U.S. Supreme Court is the nation's highest court. No lower court can supersede a Supreme Court decision, and not even Congress or the president can change, reject or ignore a ruling by the Supreme Court. No state government can do so either. In fact, unless and until a decision by the U.S. Supreme Court is overruled by the Supreme Court itself, or by the American people acting collectively through the Constitution's article V amendment process, what the Supreme Court says goes.

The recent two-to-one decision by a panel of the U.S. Court of Appeals for the Fifth Circuit upholding the University of Texas at Austin's use of racial preferences in its admissions program indicates that the two judges in the majority, Patrick E. Higginbotham and Carolyn Dineen King, have forgotten this basic tenet of American law. After all, on June 24, 2013 the Supreme Court vacated and remanded this same panel's prior decision in Fisher v. University of Texas on the ground that the panel impermissibly deferred to the University on the dispositive question of whether race was being used in too heavy-handed a fashion in the admissions program.

Although the Fifth Circuit panel gives lip service in its latest ruling to the Supreme Court's instructions to review the University's admissions program with -- in the panel's words -- "more exacting scrutiny," it simply repeats its previous mistake of deferring to the University too much. The dissenting judge, Emilio M. Garza, points this out repeatedly in one of the most persuasive lower court opinions I have ever read.

For example, as Judge Garza makes clear, what the Supreme Court actually instructed the Fifth Circuit panel to do on remand was afford the University "no deference" at all with respect to its assertion that its chosen "means ... to attain diversity are narrowly tailored to that goal." Succinctly put, the University was required to explain "with clarity" what it meant by the "critical mass" of minority students that it was endeavoring to enroll. It failed to do so.

Instead, the University offered the predictable sorts of dissemblings that colleges and universities typically offer when they are trying to convince reviewing authorities that their illegal admissions programs aren't illegal. As Judge Garza aptly put it, "At best, the University's attempted articulations of 'critical mass' before this court are subjective, circular, or tautological."

The Supreme Court knew this, and that is precisely why it vacated and remanded the case in the first place. It is profoundly disturbing that Judges Higginbotham and King are letting the University play the same game all over again. (Judge Garza finally recognized what the University was up to, which is why he switched from ruling for the University in the original appeal to ruling against it on remand.)

Which leads to the most important question of all: What happens next? Abigail Fisher, the plaintiff in the case, issued a statement immediately after the Fifth Circuit panel's most recent decision in which she insisted that she remained "committed to continuing this lawsuit even if it means we appeal to the Supreme Court once again."

She shouldn't be forced to do that, but unfortunately she probably will be. Of course, it's not completely unheard of for lower courts to misunderstand or, on rare occasions, deliberately ignore the express instructions of the U.S. Supreme Court. If the nation's highest court does agree to hear Fisher's appeal for a second time, I strongly suspect that she will win as she did the first time. The Supreme Court can't fail to notice that there's a big difference between affording the University "no deference" at all and permitting the University to prevaricate its way to victory in litigation.

Perhaps this will end up where Ms. Fisher wanted it to end up in the first place: with the nation's highest court declaring once and for all that the Constitution requires that colleges and universities assess applicants as individuals rather than as members of racial or ethnic groups. She has reason to be optimistic: it was only a few months ago that the Supreme Court ruled six-to-two that the people of Michigan may amend their state constitution to forbid any consideration of race altogether because colleges and universities can't be trusted to use it modestly and because at least some lower courts don't seem to care that they don't.