UT case decision frustrating but too important to miss

Posted Tuesday, Jun. 25, 2013  comments  Print Reprints
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It’s frustrating that a crucially important legal case, one dealing with race-based admissions to the University of Texas at Austin, in which the primary events occurred five years ago, its legal arguments made and appealed, its course properly directed to the U.S. Supreme Court and arguments held there eight months ago, should now land with no formal decision.

Frustrating, but not wrong.

In a 7-1 ruling, the high court said Monday that the case, Fisher v. University of Texas at Austin, needs more work.

Citing clear directions given in three previous affirmative action cases dating back as much as 35 years, the justices said the 5th U.S. Circuit Court of Appeals did not examine UT’s admissions policies, which include race as a factor, hard enough.

The majority opinion, written by Justice Anthony Kennedy, says the university was not properly required to meet “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

It’s reasonable to assume that the eight justices who took part in this decision (Justice Ruth Bader Ginsburg registered the lone dissent; Justice Elena Kagan disqualified herself) argued among themselves at length. They don’t often take so long to send a case back to a lower court.

The time spent on it also is a sign that the court recognizes the weight of race relations in today’s society.

Nothing less than proper legal procedure and thorough examination of the university’s policy will do. Too much is at stake for future UT applicants.

Kennedy pointed out that 10 years ago the court upheld the use of race as one of many “plus factors” in an admissions program “that considered the overall individual contribution of each candidate.”

In 2004, UT Austin decided that at the classroom level it lacked a “critical mass” of minority students. Supreme Court precedent says universities can recognize “educational benefits that flow from a diverse student body.”

Note that the benefits must be educational. The court has said it is not the job of university admissions policies to redress society’s previous discrimination.

But for diversity to qualify as a compelling state interest, it must encompass “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”

A new decision from the appeals court about UT Austin’s policies won’t come soon. By the time it does, another affirmative action case might supplant this one as the Supreme Court’s next precedent-setter on the issue.

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