In its landmark decision in Grutter v. Bollinger, the Supreme Court left no stone unturned in trying to root out an alleged “rigged” system of university admissions in the United States. There is no doubt that the country’s flagship universities have been thoroughly politicized, with the decision-makers are bringing in one group of students and applying a variety of criteria for admission.

The Supreme Court is not going to be the arbiter of every situation in a particular case. It will, however, be very cautious about opening the door to absolute bias on the part of a majority of the judges. In fact, it seems they are already doing that, when it comes to some of the cases in the lower courts.

In Grutter, Thomas was referring to an intriguing case in which a group of non-profit organizations (like HEAL, the Juvenile Diabetes Research Foundation, and others) filed suit to get rid of the use of race as a factor in admissions. The Supreme Court had previously ruled that the use of race could be used as a factor in admissions, and therefore had no place in university admissions.

However, the Court said in this case that, even if race is an acceptable factor in some of the group’s needs, that does not necessarily mean that it is a factor that the university should consider. Therefore, it is still possible for a race-conscious admissions policy to be discriminatory.

Thomas is referring to the case of Abigail Fisher. She was denied admittance to the University of Texas, because the university used a race-conscious admissions policy.

But Fisher wasn’t denied admittance to Harvard. She was denied admittance to the University of Texas, because the fact that she was white precluded her from gaining admittance.

Although the case concerned two different universities, Thomas made it clear, “The principle applies with equal force to elite universities like Harvard and Yale.” He went on to state that he believes that Harvard and Yale have already shown that they don’t need to use race as a factor in admissions.

Under the “strict scrutiny” standard, the Supreme Court will only consider race as a factor if there is some question as to whether it has the effect of limiting an applicant’s access to an education. For example, if there is a background of racial discrimination, as in the case of Abigail Fisher, it will be necessary to look at whether the use of race has a material adverse effect on the ability of minority applicants to get into the school.

Thomas went on to say that, if the University of Texas were found to have been discriminatory, it would be required to remove the use of race from their admissions policy. But, if Harvard was found to have been discriminatory, it would be prohibited from using race in their admissions policy.

But, Thomas said, “The First Amendment requires us to deny this request.” It is unconstitutional for the university to use race in order to admit certain students into their campus.

The justices did not outright ban the use of race in college admissions, instead leaving it up to the universities to make decisions about their admissions policies. The lower courts, therefore, must follow the Supreme Court’s rulings and must limit their actions to interpreting the “strict scrutiny” of the Constitution.

Those who disagree with Thomas’ opinions may also wish to read his dissenting opinion in Grutter. He states that he agrees with the majority opinion in the case, but disagrees with the majority’s refusal to prohibit the use of race in admissions policies.