OPINION:
The Supreme Court will ultimately recognize that race can never be used by public schools in making admissions decisions. However, Justice Scalia’s death may have postponed that recognition.
On Dec. 9, 2015, the Court heard oral argument in Fisher v. University of Texas. A decision is expected by June. In the case, Abigail Fisher contends that the school’s discriminatory admissions standards led to her rejection, notwithstanding the fact that her qualifications were better than those of many admitted minority students. The university uses a holistic approach to admissions, in which race is one of the considered factors.
Miss Fisher has been to the Supreme Court before, in 2013. At that time the court ruled 7-1 that race-conscious admissions are subject to strict scrutiny, and it remanded the case for the application of that standard.
Until Justice Scalia’s passing it seemed that there were at least four votes in favor of making it unconstitutional for public schools to take race into account in any way in admissions. On the other side, Justices Ginsburg, Sotomayor and Breyer were and still are likely to uphold the University of Texas’ use of race in admissions.
With Justice Scalia, we could have expected at least a 5-3 ruling finding that the university’s admissions policies violated the Constitution. There was also a possibility, depending on Justice Kennedy, of a broader ruling expressly holding that any race-conscious admissions policy violates the Constitution.
Now that broader ruling seems very unlikely. Still, I expect the court to rule against the university and push race-based college admissions closer to extinction. It is now plausible that the court will simply remand the case for trial, which would give the university the opportunity to present new evidence to justify its race-conscious policies.
The inherent problem with affirmative action is that it claims race is a legitimate basis upon which to judge someone, while the Constitution says it is not. Justice Scalia knew this. I am hopeful that his death will not delay for too long the court’s formal recognition of this fundamental truth.
GEORGE A. NATION III
Professor, law and business
Lehigh University
Bethlehem, Pa.
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