Texas Race Case Defiance

By WSJ, Editorial

The university tries to dodge the Supreme Court on preferences.

Abigail Fisher, right, who sued the University of Texas,

In the middle of the last century, opposition in Southern states to the Supreme Court’s racial rulings became known as massive resistance. Now liberal universities are using whatever means they can to avoid abiding by the law.

Consider the reaction by the University of Texas to the Supreme Court’s decision in June on racial preferences, Fisher v. University of Texas. Justice Anthony Kennedy and the conservative Justices with the exception of a dissenting Clarence Thomas refused to eliminate racial preferences in education. Instead, Justice Kennedy wrote a narrower opinion ruling that the school’s race-based admissions system had to be subjected to “strict scrutiny” and sending it back to the Fifth Circuit for rehearing. UT is now using legal acrobatics to stall the effects of his ruling.

In July, the University of Texas asked the Fifth Circuit not to rehear the case but to send it back down to the district court for further proceedings on whether plaintiff Abigail Fisher, who was denied admission to the university, still has standing to sue now that she has no further interest in attending. The university’s hope is that it will be able to dodge the Supreme Court’s order that its program meet the new standard. If Ms. Fisher lacks standing, the case will be moot and some other student would have to challenge the school’s policies in court. Such a new case could take several more years to play out.

On the legal merits, revisiting the issue of Abigail Fisher’s standing to sue is like digging up a thousand-year-old egg. Ms. Fisher’s standing was challenged and litigated at every stage—before the district court, Fifth Circuit and Supreme Court. In each instance, the courts accepted her standing to sue and decided the case on other grounds. That makes the issue implicitly dismissed.

The university now says the case should be sent to the district court to sort out the “factual issues.” But the Supreme Court’s opinion is clear, noting that the decision on whether UT’s race-based admissions program can survive the test of strict scrutiny “must” be decided by the Fifth Circuit “in the first instance.”

None of this seems to matter to the University of Texas, which likely figures that even a far-fetched legal case might be able to tie things up and forestall any court guidance on its admissions policies through several more matriculating classes. The same goes for schools across the country that are watching how Fisher plays out and will take their cues from its resolution.

The runaround underscores the morass that the Supreme Court’s jurisprudence on racial preferences has created. Justice Lewis Powell’s 1978 Bakke decision opened the door for considering race to foster a university’s interest in diversity on campus, and another muddled opinion compounded that mistake in the 2003 University of Michigan preferences case Grutter v. Bollinger. Liberal university elites have been trying to exploit the ambiguities to push policies that clearly discriminate on race.

By failing to draw a clear line in Fisher, Justice Kennedy has created another opening for such liberal defiance. The obvious strategy by the preferences lobby is to exploit Justice Kennedy’s refusal to make up his mind and wait him out until a Democratic President can restore a 5-4 liberal majority on the Supreme Court. The University of Texas is following this political script, much to the detriment of the Supreme Court’s reputation and to equal protection under the law.

A version of this article appeared  on page The Wall Street Journal.

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