Two pending cases in the United States Supreme Court, to be decided by the end of this June, involve issues of racial justice.
One case challenges the affirmative action plan for admissions at the University of Texas. Many lawyers thought that several years ago a five-to-four Supreme Court decision upholding the University of Michigan admission plan resolved all these kinds of cases. Apparently not.
The Michigan plan, approved by the Court, stated that universities could utilize race as one factor, although not the determinative, in establishing standards for admission. The justification was that the university had a legitimate interest in creating a diversified student body, believing that such diversity created a better educational experience.
The University of Texas had in effect a “top 10% rule” which automatically admitted to its Austin Campus the top 10% of graduates in all Texas public high schools. Since many Texas high schools werede facto racially segregated, this resulted in substantial student body diversity. Texas now was intending to graft on top of its 10% rule a provision, affecting the recruiting of the balance of its entering class, using the Michigan system (race being one but not the only factor).
The case may even be thrown out; the plaintiff, a white student claiming she was discriminated against, has already graduated from another college and the only remedy she is seeking is the return of her application fee (a fee which the University of Texas never refunds in any case, whether or not an applicant is admitted or denied admission for any reason whatsoever).
The second case, Shelby County against (United States Attorney General) Holder, involves Section 5 of the 1965 Voting Rights Act, which identifies certain states as having bad racial history. Any change in the voting laws of those listed states cannot be given effect unless the United States Department of Justice approves. The Congress has five times extended the Act but has never once amended the list of states which are subject to this mandatory review. The plaintiffs argue with some cogency: is it really possible that in the last forty- plus years, since the enactment of the original Voting Rights law, there has been no change whatsoever in any of the states subject to this pre-clearance procedure?
Does not a failure to make specific findings on a state- by- state basis, identifying anew those states which still require such scrutiny, prove that Congress is simply renewing the statute without a rational federal interest which would justify intrusion into state election laws?