That is what the great legal minds on the court did, according to Ginsburg, when they put the University of Texas’s freshmen admissions policy under a microscope for eight months and then weren’t sure what they’d seen. They sent it back for a lower court to take another look.
Fisher v. University of Texas
had the potential to be a cease-and-desist order for race-conscious admissions policies, but the court clearly could not find a majority of justices willing to go there just now. One of the striking things about Justice Anthony M. Kennedy’s scant 13-page opinion is that there is very little discussion of the matter at the heart of the issue: race.
The only real debate — and it was an interesting one — came from Ginsburg, the only justice willing to say that UT’s policy passed muster, and Justice Clarence Thomas, the only one who wrote to say that the university’s use of race is categorically prohibited by the Constitution.
Their separate opinions at least give two opposite views of the role racial considerations should play in American social policy, though neither attracted a co-signer from the six other justices who participated in the decision (Justice Elena Kagan recused herself, presumably because she worked on the issue while solicitor general).
Ginsburg said that racial considerations should be allowed and that the use should be freely acknowledged.
“I have several times explained why government actors, including state universities, need not blind themselves to the still-lingering, everyday evident, effects of centuries of law-sanctioned inequality,” said Ginsburg, 80, in announcing her dissent from the bench.
“Among constitutionally permissible options, I remain convinced, those that candidly disclose their consideration of race are preferable to those that conceal or obscure what drives them.”
About 75 percent of the freshmen at the University of Texas at Austin are admitted under the state’s unique Top 10 rule, in which those who finish at the top of their high school class are automatically in. Applicants filling out the rest of the class undergo a “holistic” examination, in which race is one of the factors considered.
The two have combined to make UT one of the most diverse major universities in the country. But Ginsburg said it was irrational for the court to consider the Top 10 system racially neutral, and the other suspect.
The Top 10 law works only because of the de facto segregation of Texas neighborhoods and high schools; it was designed that way. It is what made her think of law professor Powell’s quip.
“Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious,” she wrote.