Supreme Court Punts on Texas Affirmative-Action Case

Jess Bravin, Wall Street Journal, June 24, 2013

Capping a year of suspense with a surprise anticlimax, the Supreme Court Monday sidestepped a sweeping ruling on affirmative action and instead directed lower courts to re-examine whether a race-conscious admissions program at the University of Texas at Austin should survive constitutional scrutiny.


Both sides took solace in the 7-1 ruling. Justice Elena Kagan, who as solicitor general participated in the Obama administration’s defense of affirmative action, sat out. In dissent, Justice Ruth Bader Ginsburg wrote that the UT plan passed muster and shouldn’t be returned to the lower courts for additional review.

Edward Blum, an opponent of racial preferences who financed the lawsuit through his Project on Fair Representation, expressed confidence the program would fail when contested at trial. “The Supreme Court has established exceptionally high hurdles for the University of Texas and other universities and colleges to overcome if they intend to continue using race preferences in their admissions policies,” he said. “This decision begins the restoration of the original colorblind principles to our nation’s civil-rights laws.”

UT Austin President Bill Powers said he was “encouraged” by the ruling. “We will continue to defend the university’s admission policy on remand in the lower court under the strict standards” laid out by court precedents, he said. “We believe the university’s policy fully satisfies those standards.

After consideration in the lower courts, the issue could well return within several years to the Supreme Court, possibly for a more definitive decision.

The current admissions policy, which considers race in filling a small percentage of the university’s slots, will remain in place while legal proceedings continue, said Mr. Powers.


A U.S. district court in Austin dismissed the suit when it initially was filed on behalf of Abigail Fisher, a white student rejected by UT. The district court, later upheld by the Fifth U.S. Circuit Court of Appeals in New Orleans, found that the UT program met the requirements the Supreme Court laid out in Grutter v. Bollinger, a 2003 affirmative action case from the University of Michigan Law School.

In Grutter, the court voted 5-4 to uphold racial diversity as a compelling governmental interest, and found the law school’s consideration of race acceptable, as it didn’t involve a specific quota for minority admissions or provide minority applicants automatic bonus points in the admissions formula.


Monday’s opinion reiterated Justice Kennedy’s 2003 view that universities should be required to show why giving preferences based on an applicant’s race was necessary. He wrote that lower courts had misunderstood the Grutter precedent: While they should generally accept a university’s academic judgment that student diversity provides educational benefits, courts shouldn’t defer to college administrators regarding the methods used to obtain it.

“The University must prove that the means” it has chosen “to attain diversity are narrowly tailored to that goal,” Justice Kennedy wrote.

Before using racial classifications in admissions, UT must demonstrate “that available, workable, race-neutral alternatives do not suffice,” he said.

Ms. Fisher’s attorneys argued that UT’s regular admission system already provided sufficient diversity among the student body.

UT gives automatic entry to any Texas student who graduates in roughly the top 10% of his or her high-school class. That program was designed to maintain ethnic and racial diversity after a 1996 federal appeals court ruling restricted affirmative action in Texas and nearby states.

After 2003, when the Supreme Court voted 5-4 to reinstate affirmative action, UT quickly supplemented its top-10% plan with an additional admissions pathway that allowed consideration of race and other factors beyond grades and test scores. {snip}



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  • Evette Coutier

    It’s easy. All the university needs to do I’d open a romper room that gives out degrees. They can fulfill their quotas and meet the strict constitutional requirements of the US Supremely stupid court.

    • The__Bobster

      Rutgers has had that for their afwheats for decades. It’s called Livingston College.

      • IstvanIN

        Livingston College is no more. The federated college system has been replaced by a huge, four campus, spend your life on an articulated bus going from class to class monstrosity called “The School of Arts and Sciences” . The usual suspects dismantled all that made Rutgers unique among state universities, except the name. And they are working on that.

      • OlderWoman

        Is that Livingston College, in Livingston, Alabama?

  • Hal K

    There is no good reason to leave it up to the courts to decide on Affirmative Action. Everyone has punted on this issue, including the GOP. In the 90s they (the GOP) decided not to talk about it for fear of alienating blacks.

    • Sick of it

      Yeah..good thing 93% of blacks voted for Obama. Guess it’s really working out for the GOP.

    • Here in Texas, we have what’s called the “10% Rule”.
      You see, if you graduate in the top 10% of your class, you are automatically admitted into the university of your choosing. It works out really neat for those who go to all black, or all Mexican schools.

      I didn’t see the white people here in Texas do much to stop it from happening, except vote for the same republicans who never even mentioned the issue in the first place.

      • Ngati Pakeha

        Sorry, is that really the case? That it applies to the top 10% of ALL schools. If that’s the case then surely that is an even bigger issue than the “others” who apply for the discretionary positions.

      • When they get what they want, Section 8 everywhere, the top 10% will be all whites, jews, and asians in every school once again ….. then what will they do?

  • The__Bobster

    After consideration in the lower courts, the issue could well return within several years to the Supreme Court, possibly for a more definitive decision.

    Sure, stall for time until another chosen libtard can be seated on the SCOTUS.

    • Romulus

      That is the next step in their playbook. Its all the talk on the beltway.

      • Anon

        It is overwhelmingly unlikely our government will still be around by then. Obama has the country barely weeks away from an entire collapse.

        In fact, I rather say the opinion of the high court is moot. THEY won’t be around much longer. Neither will any of the universities this supposedly applies to.

        As for the blacks it might apply to? They are all about to starve to death as EBT shuts down.

        • Romulus

          I’ve posted before how hard life will be in the event of collapse, but every ending is also a new beginning.

        • Nathanwartooth

          Weeks? No.

          They can stretch this out to another decade at least. America is doing bad, but the EU and Japan is in deep doo doo as well.

          • evilsandmich

            I’m afraid of that. I think of it as the ‘Ottoman Scenerio’ where, much like the Ottoman Empire of old, too many legacy players have an interest in keeping the American Federal Government around and they will be able to survive WAY past the point of when they would have naturally collapsed (in fact the point can be made that we’ve been in that zone already for many years).

  • Eddie Lutz

    Simple solution: employers can discard the application of any black that graduated from a college that uses quotas. No need to participate in anti-white discrimination.

  • IstvanIN

    Republicans should be working on an amendment to the constitution outlawing affirmative action and disparate impact. Any white democrat who lobbies against such an amendment could be castigated in an election for hating whites.

    • RisingReich

      The only thing Republicans are ‘working on’ is further alienating and displacing Middle Class Whites.


  • We’re only 9 years into that 25 year time period Sandra Day O’Connor says is all that’s required until Affirmative Action is needed.

    You know, I can’t really feel sorry for a bunch of idiot whites who support Obama and the Democratic Party, yet can’t comprehend why they can’t find a middle class job.
    Hmmp. They can’t even find a job period.

    I’ve now reached the conclusion the republican voters aren’t any smarter. The GOP all turn into spineless wimps when it comes to THIS topic.
    Think of all those clueless whites under 25 searching for someone to blame their problems on. The democrats don’t want their vote, and it looks like the republicans don’t either.

    • Romulus

      I enjoy your brutal honesty. True powers of observation takes a hard look at both sides.

  • Jefferson

    I have heard some Blacks say they need affirmative action to get ahead in life because on average they don’t have a strong networking system like WASPs and Jews.

    • They have a strong network, it’s their gang ties.

  • Ngati Pakeha

    Nice. The Supreme Court is too gutless to make a decision. I’m a little surprised Scalia, Thomas & Alito would go along with this skulduggery. It smells of an ‘in camera’ horse trading deal enabled by the Chief Justice who has been a huge disappointment. Another nail into the Constitutional coffin I am afraid.

  • Romulus

    In a recent article in the WALL ST. JOURNAL, the plan to make Texas the next battleground state is under way. Rick Perry said “COME ON DOWN”. So as the Mexicans poured into Calif,white flight was we’ll under way to the eastern rockies,Pacific northwest, and Colorado. The problem became one of blue staters migrating en mass to the pristine conservative red states. The article went on to conclude, If we lose Texas ,we lose the republic.

  • Took one for the team?

    GINSBURG, J., filed a dissenting opinion.

    • IstvanIN

      The majority of the Supreme Court is populated by a hostile, alien “elite”.

  • APaige

    I understand:Everyone knows that most blacks and Hispanics cannot compete on the same level as whites and Asians.
    In order to produce equality of outcomes institutions must lower standards.
    But for the life of me, I do not understand how diversity is a ‘compelling governmental interest.’ Any answers would be great.

  • Luca

    Why is only racial diversity such a compelling government interest? And let’s be honest, when they say “racial” they mean blacks and hispanics. Why not the other protected classes or minorities?

    Seems to me, blacks and hispanics are the most easily manipulated groups once you tell them that they are victims and you have gifts for them. In turn, they will follow blindly down the path that their liberal benefactors have laid out for them. Some folks work for a living and some just vote for a living.

    If racial diversity were so compelling, who is keeping tabs on Native American enrollments? I guess the polls show they won’t vote no matter how many gifts you give them.

  • populism101

    7 judges voted to NOT end affirmative action.

    5 of those 7 judges were appointed by GOP presidents.

    So why on earth do you vote GOP?

    • Ngati Pakeha

      Good point. On that same note I see the only one of the so called elite (Supreme Court Justices) who issued a substantive position was Ginsburg, a card carrying libtard if ever there was one. As much as I despise her politics I congratulate her on taking a position unlike the others.

      • BostonMary

        Except for the sole Black Conservative on the Supreme Court:

        Following in these inauspicious footsteps, the university would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign … I write separately to explain that I would overrule Grutterv. Bollinger, and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.

        –Judge Clarence Thomas

        • Ngati Pakeha

          Thanks. How could I forget Justice Thomas. Don’t you find it ironic that the most conservative soul on the SC is a black man? A slightly rhetorical question by the way 🙂

  • Dave4088

    Abigail Fisher met or exceeded the UT entrance requirements, but was denied admission because of her race (white) and the so called “high court” chooses to look the other way by delegating a ruling to a lower federal court. This proves that discrimination is a high crime unless directed at white people to satisfy some diversity bogey at a university or workplace.

    The soothsayers told us for years that AA would never discriminate against qualified white people. We know now that AA is a zero sum game and whites disproportionately get the shaft in favor of less deserving non-whites.

  • Anon

    uphold racial diversity as a compelling governmental interest

    Clearly that is neither part of our constitution nor the law of the land. No elected official could get away with making it the law either.

    Such a thing is only possible in a communist oligarchy, which is what the US has become. The law? The constitution? Might as well be written of toilet paper. All that matters is the political agenda of whatever random oligarch is involved.

    I will be blunt…..we are not governed by consent and this (and a million other things) clearly trips the right of the American people to overthrow their government. In the most basic and clear sense, our government has gone rogue.

  • Dave4088

    Why is racial diversity not a “compelling government interest” at the U.S. Post Office, or the NBA and NFL or any other field dominated by blacks and other diversities?

    • dukem1

      All the time and expense that has been wasted on this stuff over the years…just because it’s so un-PC to just state what has been obvious from the git-go….
      All these folks want is to somehow provide what they think are equal outcomes…no matter how they twist and convolute the situation, they’re just trying to show that these dark-skinned hoards are somehow up to the task of living in a modern society. The facts that show all the evidence to the contrary is provided by the “minorities” themselves is of absolutely no consequence..The “progressives” will never face the truth. Their wards are simply not up to the task.
      Never have been, and, so it seems, never will be.
      A nation is a terrible thing to waste.

    • Bon, From the Land of Babble

      Notice there is NEVER an explanation or definition offered as to exactly what constitutes a “compelling government interest.”

      I would like a definition of “compelling government interest.”

      Always keep an eye on the words “government interest,” which mean it is good for government, not the people of the United States.

      These same weasel words “government interest” have gotten us into bloody wars that have cost White lives all over the world, wars that are NOT in the “interest” of the American people, especially White Americans — same as AA.


      • Dave4088

        “Compelling government interest” is nebulous and can be used to further any end the government so desires. It’s time the government demonstrate how racial diversity on college campuses and in the workplace is in the best interests of all citizens. It cannot do that and we are supposed to accept the fact that we are “enriched” by diversity or be labeled racists and bigots.

  • A Freespeechzone

    When Whites are the minority, will AA apply to us?

    What do you bet it won’t….White Privilege will always be the reason…it’s always about payback, retribution and punishment for a situation that nobody alive today experienced.

    • Ella

      Texas is already majority non-White. They have the AA evidence that residents have to make room for the illegals and then, fund through grants and federal loans. There is just not enough space for everyone. The State created the problem by allowing illegals, who attended TX high schools for min. 3 yrs with valid diploma, to attend higher education as a resident at In-State cost.

      • Bon, From the Land of Babble

        We already have a good example of what life will be like for Whites when we are lorded over by a hostile non-White majority: South Africa.

        As the schools, media and government continue to dehumanize Whites with propaganda that the White race and only the White race persecuted and continues to persecute and oppress minorities, we will be the target of a savage brutality unleashed upon us with no one to come to our aid, not the laughable UN, World Court or any “compassionate” country.

        Our genocide is being justified as Whites getting what they deserve because of past bad acts.

        There is NO justification for genocide.

        Until and unless our homelands, heritage and culture are secured and protected with merciless deadly force, we will continue to lose ground and be at the mercy of the White-hating elites that have usurped our homelands and the White-hating destitute savages that continue to pour into the societies we created for ourselves.

        Would that more Whites saw it this way.

        Whites are in physical danger in societies run by non-Whites.


        • Wethepeople

          Be prepared to defend yourselves. They are out to hurt you, and your families. If you FEEL like you are in danger, the situation is much worse than you can see. ALWAYS remain armed, and NEVER allow yourself to be a victim. When the Bantu swarm comes for you, reply with unadulterated lethality, it’s better than what they have in store for your wife and children.

          • Bon, From the Land of Babble

            Teach your wife and children to defend themselves, without mercy, and with deadly force if need be. We didn’t come this far or survive this long by playing nice with others or by trying to reason with the unreasonable.

            As poster “Luke” once wrote so eloquently on this forum:

            We are not fighting an enemy who gives two hoots about fair play, sportsmanship, honor, or integrity.  This enemy fights dirty and is absolutely the most ruthless, cold-blooded, sadistic and violent enemy that White European people have ever faced.

            What our enemies have in store for us is going to take everything we’ve got and ALL of us to counter.

            As for the Bantus when their EBT cards run out and they come after Whites: Let ’em eat lead.


    • Jotun Hunter

      a situation that never even existed. every race everywhere through all of history kept slaves – whites are ironically the ones who got rid of it

  • Bon, From the Land of Babble

    Following in these inauspicious footsteps, the university would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign… I write separately to explain that I would overrule Grutterv. Bollinger, and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.

    –Judge Clarence Thomas

    AA is illegal, immoral and unjust. Nebulous “compelling needs in the interests of diversity” do not trump the Constitution; any “laws” upholding AA are illegitimate.

    But the court did not say that UT’s policy was unconstitutional; indeed, on remand, it’s possible the courts will uphold UT’s policy.

    –The Daily Beast

    The district court already looked Fisher v. University of Texas twice, upholding it in 2009, affirmed by a Fifth Circuit panel then later dismissed by circuit judges. SCOTUS should have put and end to this case instead of remanding it for a “do over.”

    The Fisher case will now wind its way back through the federal judiciary and may return to the Supreme Court in 2014 or 2015.

    By that time, the court will not have a conservative majority.

    A Washington Post/ABC News poll conducted in early June found that just 22 percent of registered voters support the use of race as a factor in college admissions. More than three-fourths oppose it, most of them strongly.

    The will of the people no longer matter in the new Amerika.


  • anarchyst

    “White supremacy” never existed . . . it is a concept that has been foisted on us by those that have an interest in seeing our demise. You know who they are . . . When we had true “freedom of association” (pre-“civil-rights (for some)” era), each racial group succeeded (or failed) on its own merits. There were black professionals that catered to “their own kind” as well as white professionals that catered to “their own kind”. In fact, blacks were “coming up” much faster when their progress and successes were measured by “their own kind”.
    Just recently there was an article written lamenting the end of (voluntary) segregation. This article had to do with the success of black musicians before segregation was outlawed. Many blacks feel that they had control of their own destiny when THEY ALONE were responsible for their actions. Many blacks feel that pre-integration black music was better than post-integration music. This was before the end of “freedom of association”.

  • MekongDelta69

    Part of today’s Declaration of Independence:

    “We (except leftists) hold these truths to be self-evident, that all men are created equal (except some men are created more equal than others), that they are endowed by their Creator (Government) with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness Gibsmedat.”

  • By continuing Affirmative Action while “tinkering” with the mechanics of how it is implemented, SCOTUS is offering the same syphilitic prostitute doing business as usual, with some extra makeup to pass inspection in bad light. A.A. is and always has been bad law, and the devil here is NOT in the details.

  • When thinking about this case, I put myself in the position of a Supreme Court judge. (Yeah, I know, from my mouth to Allah’s ears.)

    The hypothetical me on SCOTUS would like to find for Miss Fisher, but I can’t think of any Federal Constitutional grounds to do so. Just between everyone reading these words and the gatepost, we all know that this Top 10% was done precisely as a seemingly non-racial end run around the concept of blatantly race-based AA, because we all know that the valedictorian of taco or ghetto high schools in Texas isn’t as worthy as someone from a difficult competitive white high school who finished one person below the top 10%. But what am I supposed to use as a rationale to find for Miss Fisher? Am I to use the doctrine of disparate impact? (Which the real SCOTUS will take up next term). Except I don’t think the disparate impact doctrine should even exist. If it shouldn’t exist to invalidate police and fire department entrance and promotion exams, then it shouldn’t exist to knock back this top 10% system either. The doctrine of strict scrutiny of racial classifications at law? First off, I think intermediate scrutiny should be used on race, and second, there are no racial classifications de jure in this case.

    • Irishgirl

      “From my mouth to Allah’s ears” – highlight of my day. Thanks for that!

  • Gwynn Ap Nudd

    60 Minutes aired its interview with Sotormayor again. This wise Latina can’t get over her outrage that any would question her right to be given special treatment ever since she was a little girl. She can’t see that it’s an admission of her own inferiority.

    • The fact that she can’t see that it’s an admission of her own inferiority is prima faci proof of her aforementioned inferiority.

      • Bon, From the Land of Babble

        Yeah, and it’s near impossible that an unqualified, racist AA idiot sits on the Supreme Court, the final arbiter of the US Constitution.

        But she does.

        Now imagine a few years when there are more activists just like her as the ultimate interpreters of the US Constitution — to racist jerks like sotomayor, the Constitution is nothing but empty words from dead, racist White slavers written on a scrap of toilet.

        • She looks like somebody’s maid or cook.

        • Irishgirl

          “This is are [sic] land” – did La Raza mean to do that, or is that just wickedly funny?

  • Bon, From the Land of Babble

    The march through the institutions began much earlier than the 60s.

    It started when traditional White American Culture was replaced by the following twisted, sick, unquestioned, anti-White, anti-American dogma:

    *When Boaz and his minions took over the anthropology departments of major universities and implemented the specious idea that all people have the same biological potential for accomplishment and no culture is better than any other.

    *When Marxism became fashionable and was embraced in the 30s: “We can create a classless society in which there will be no conflicts of interest and people will happily work for the common good.”

    *When Freud and psychoanalysis became all the rage; we’ll have a society in which people will be in tune with their sexuality and free of neuroses and “racism.”

    *When the Frankfurt School of Social Research shoved down our throats the notion that a multicultural paradise in which different racial and ethnic groups will live in harmony and cooperation and replace the racist, genocidal, authoritarian culture of White America.

    *When neo-conservatives pushed the belief that we should wage war to remake other societies in our image.

    The design of these programs, of course, was NOT to create a multi-cultural workers paradise; each one is a genocidal pogrom designed to exterminate the White race — which I believe is, was, and always will be the Prime Directive of the White-hating elites who implemented them.

    To Destroy A People, You Must First Sever Their Roots
    –Alexander Solzhenitsyn

    Workers Paradises are totally discredited by the simple fact that they had to shoot escapees.


  • jeffaral

    The Supreme Court is a joke: Of its members, 5 are Jewish, 1 is black, 1 Hispanic and 2 are aracial.

  • evilsandmich

    The fun part is that the more low-end students that universities admit to their colleges, the more they become low-end schools. The inevitable destruction of the American university system is lamentable, but really, very few groups have done more to bring such destruction upon themselves.

  • evilsandmich

    They got Black Bush elected.

    • Paleoconn

      Bushlet was responsible for the top 10% fiasco.

  • Dave4088

    1188 to be precise and she fell just shy of being in the top 10% of her graduating class. But non-whites whose scores were equal to or lower than hers were admitted to UT on the basis of their race, so that alone gives her case merit.

    If the races were reversed you would probably be whistling a different tune and Obama, Holder, Sharpton, the NAACP and the lamestream media would be screaming bloody murder

  • pp91303

    “Corporate executives and other rich, powerful people are.”

    No they aren’t. The political class has created the mess we are in. The economy collapsed as a result of the trillions of dollars of toxic waste mortgages that were created due to Bill Clinton’s idiotic housing policies carried out by the crooks who ran Fannie mae like Franklin Raines, Jamie Gorelick and Rahm Emanuel. Those three miscreants, along with big Demcrat donor Angelo Mozillo and his “friends” like Kent Conrad and Chris Dodd, got rich while they infested the financial markets with rot. Public education has been ruined by the teacher’s unions which have the Democrat party in their back pocket (in 1996 they had veto power of the DNC party platform), and they elect the officials who negotiate their contracts. We now spend more money than any country on earth on K-12 education, and more per capita than any country but Norway, yet we rank 17th in science and 25th in math. The political class has used public education as a political patronage system instead of an education system and our society has suffered. The “progressives” told those opposed to the great society programs that they were stupid to believe any woman would intentionally have a child out of wedlock. Yet, 50 years later the family unit has been decimated amongst the weakest segments of society. Over 70% of black children are now born to single mothers, amongst latinos it is over 60%. Steve Jobs said that one of the main reasons Apple couldn’t manufacture its gadgets in the US is that the work force lacks enough people with engineering degrees and skills. Thank the political class and their stupid public policy. Our troubles have been caused by the 1 percenters in Washington and New York who have gotten rich lobbying the leviathan of federal and state governments that liberals have created. “Need an Obamacare waiver, mr. union representative?” “no problem if you donate some money to my campaign.” Tom Daschle was the Senate Majority leader when his wife was raking in a seven figure salary as a lobbyist. Dianne Feinstein chaired a Senate sub-committee that appropriated over $1.5 billion in government contracts to companies owned and controlled by her husband. Nancy Pelosi and her husband have made millions investing in credit card companies on whose behalf she pushed through legislation. It goes on and on.