DON VINCENZO writes:

On Wednesday, I will, once again, travel to the Supreme Court building to hear Round II of (Abigail) Fisher v. the U. Texas. Fisher, who is white, sued the U. Texas in 2008 over a university policy that denied her admission, but granted black and Hispanic students with lower Grade Point Averages and tests scores access to the university. Fisher claimed that she was denied admission because race was not “a,” but “the,” standard used in in selecting students who are not in the top 10% of their class.

In Round I, in which I was also present, the Supremes decided to punt the case back to the 5th Circuit Appeals Court which had approved the plan the university had originally submitted, but ordered a “strict scrutiny,” a far more restrictive legal requirement, in rehearing the case. But the 5th Circuit, once known for its conservative judges, but now filled with Obama appointees, did not change their decision: the existing plan of admissions was re-certified, which prompted Fisher to bring the case back to the Supremes.

Nearly 20 years ago, the 5th Circuit in a case called, Hopwood, called for a revamping of admission procedures at U. Texas, but Gov. George W. Bush and his like-minded “compassionate conservatives,” introduced the 10% solution: the university would accept the top 10% of any graduating Texas high school class. It should be noted that Hopwood, the plaintiff, had also lost her place at U. Texas, and after looking at the obstacles she overcame to enter U. Texas, the Circuit judges thought it patently unfair: the U. Texas policy was clearly discriminatory toward Caucasians.

Liberals, who run the universities, and their enablers in the press, do not like any challenges to their ukases about admission policy, and have begun the expected “vale of tears” about what a decision scaling back, or even abolishing “affirmative action,” would do. On cue, The Washington Post in its Op-Ed Section (Sunday, Dec. 6) featured an op-ed piece by the President and Director-Counsel of the NAACP Legal Defense Fund, which states, in part: “Critical mass (of minority students) is necessary …to address the racial isolation experienced by minority students and to obtain diversity of all students.” And for those who recently returned from Mars, this: “Given the stubborn persistence of racial segregation in Texas…” Then this: “… some increase in African American and Hispanic student at the university was guaranteed by an admission plan that drew students from every public high school…but the resulting increases were still insufficient.” One might, then, ask Sherrilyn Ifil, what “resulting increases” would be sufficient?” The answer: there is no answer.

Despite the gnashing of teeth and the rending of garments by the liberal media and its supporters, I am not sanguine that anything will be done to allow Abigail Fisher cause to claim victory this week. I do not know if Justice Kagan will recuse herself as she did in Round I, but you can bet that at least three Justices – Breyer, Ginsburg and Sotomayor will seek to eviscerate Fisher’s claim that she was discriminated against because of her race. “White privilege” and all that. In particular, Justice Sotomayor will cite her own life as an example of the value of “affirmative action” policies, although to raise the opposite conclusion would be perfectly understandable.

Unlike their decision which swept away legal restraints on abortion, a crime in most states until 1973, or their most recent homosexual marriage ukase, the Court will not sweep away affirmative action policies, despite the fact that there has never – ever – been a law passed by Congress and signed by the President that authorizes affirmative action. The life of  E.O. 11246 of September, 1965, has been sustained by court decisions. (In July, 2014, President Obama issued an Executive Order amending and expanding E.O. 11246, which now includes sexual orientation, and E.O. 13672, which deals with “gender identity.”) None of them received congressional approval.  Perhaps the majority of the Justices will offer a snip here or there, but nothing momentous will happen. And what of Abigail Fisher and her case? If the past is prologue, she will learn that the 14th Amendment does not really apply to her. To quote Orwell: everybody is equal, but some are more equal than others.

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