A federal appeals court recently upheld the University of Texas at Austin’s race-conscious admissions policy, which had been challenged as unconstitutional in a suit brought by White applicant Abigail Fisher.
“To deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience,” Judge Patrick Higginbotham wrote in the 2-1 opinion for the U.S. 5th Circuit Court of Appeals in New Orleans.
Civil rights activists argued that the ruling undergirded the legal footing of affirmative action, as established by the Supreme Court’s ruling in Grutter v. Bollinger, which held that universities and colleges have a “compelling interest” in using race to foster diversity due to its benefits, including better preparing students to compete in an increasingly global market.
“This decision should stand as a declaration of the ongoing importance and legality of affirmative action efforts that holistically evaluate applicants for admission in higher education and for the principle of stare decisis [precedent],” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense Fund. “The court aptly noted that ‘university education is more the shaping of lives than the filling of heads with facts.’ Universities are incubators for America’s future leadership and for civic engagement.”
The 2-1 decision came on July 15 after a three-judge panel of the Fifth Circuit court reviewed the case, which the Supreme Court remanded to the lower court for more exacting scrutiny last year. After the University of Texas’ former quota-based diversity plan was nixed by the courts in 1997, the school system adopted an admissions process guaranteeing entry to all students who graduate at the top 10 percent of their class.
In admitting those students who do not qualify under the 10 percent rule—and with an eye to diversity—the university used a holistic measuring tool that considered academic achievement and other factors such as, racial/ethnic background, extracurricular activities and the applicant’s responsibilities at home.
Under the new test set by the Supreme Court, the appeals court could not merely rubber-stamp UT’s plan, but had to assess whether the admissions program had been “narrowly tailored to obtain the educational benefits of diversity.” The court also had to verify that the use of race was “necessary” to achieve a diverse student body and that there were no viable race-neutral alternatives.
The university met those standards, the review found.
For example, UT had pursued several other options for achieving diversity, including offering scholarships to students from high schools—usually low-income—that were underrepresented in the university’s freshman classes and pursuing various outreach and recruitment initiatives, the court found.The court also cited statistics showing that in 2008, for example, the holistic review process admitted a higher percentage of White students than Black and Hispanic students, negating the argument that it was a means of merely boosting racial quota.
“UT Austin persuades that this reach into the applicant pool is not a further search for numbers but a search for students of unique talents and backgrounds who can enrich the diversity of the student body in distinct ways,” Higginbotham said in the majority opinion, shared by Judge Carolyn Dineen King. “We are persuaded that holistic review is a necessary complement to the Top Ten Percent Plan, enabling it to operate without reducing itself to a cover for a quota system; that in doing so, its limited use of race is narrowly tailored to this role—as small a part as possible for the Plan to succeed.”
A strong dissent was offered by Judge Emilio M. Garza, however, and Fisher vowed to appeal the decision, both steps that could mean that the case is not over and could go back before the Supreme Court.
In his dissent, Garza accused his colleagues of not applying the “strict scrutiny” to the university’s plan that the Supreme Court had directed.
“Simply put, the Constitution does not treat race-conscious admissions programs differently because their stated aim is to help, not to harm,” he wrote.
UT was allowed to get away with its nebulous goal of creating a “critical mass” of African-American and Hispanic students, a goal that was never defined and was, thus, unmeasurable, he argued. As a result, Fisher could not prove that UT’s program wasn’t narrowly tailored to achieve a compelling state goal, a standard required for using race-conscious admission programs.
“Accordingly, it is impossible to determine whether the University’s use of racial classifications in its admissions process is narrowly tailored to its stated goal—essentially, its ends remain unknown,” Garza concluded.
Fisher’s lawyer, Edward Blum, told the Los Angeles Times his client would appeal the latest Fifth Circuit’s decision.
“We are disappointed,” Blum said. “But this court was proven wrong by the Supreme Court in 2013 and we believe they will be proven wrong again.”
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