Federal Appeals Court Rules University Of Texas Can Discriminate On Basis Of Race

The U.S. Court of Appeals for the Fifth Circuit held on Tuesday that the University of Texas at Austin may discriminate in favor of minority applicants based on race.

The 2-1 decision affirms the appellate court’s original ruling that the university can use race as an admissions factor in addition to a state law mandating that the school must accept in-state students who have graduated in the top 10 percent of their high school classes.

The years-old case began in 2008 when UT-Austin rejected the application of the plaintiff, a white woman named Abigail Fisher.

Most students who attend the prestigious school get admitted under the state’s top-10-percent law. For the remainder of admitted applicants, such as Fisher, the school uses a more traditional review of the various facets of their applications.

Among the factors the taxpayer-funded school has been using in this secondary application review is race. The point, they say, is to achieve a “critical mass” of minority students.

Fisher’s attorneys argued that using race as a factor is unconstitutional, and that she would have been admitted over less qualified candidates had admissions staffers not judged her by the color of her skin.

Two Fifth Circuit judges have disagreed — again.

“Universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity,” wrote Judge Patrick Higginbotham in the majority opinion.

“The increasingly fierce competition for the decreasing number of seats available for Texas students outside the top ten percent results in minority students being under-represented — and white students being over-represented — in holistic review admissions relative to the program’s impact on each incoming class,” he declared.

Higginbotham, a Reagan appointee, also opined that UT-Austin has “implemented every race-neutral effort that its detractors now insist must be exhausted prior to adopting a race-conscious admissions program.”

If school officials stopped using race as an admissions factor, he wrote, it “would hobble the richness of the education experience.”

In a bracing dissent, Judge Emilio Garza, an appointee of George W. Bush, rebuked both UT-Austin and his judicial colleagues.