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

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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. 

“Although the University has articulated its diversity goal as a ‘critical mass,’ surprisingly, it has failed to define this term in any objective manner,” Garza wrote. “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.”

“[T]he University must explain its goal to us in some meaningful way,” Garza also observed. “We cannot undertake a rigorous ends-to-means narrow tailoring analysis when the University will not define the ends. We cannot tell whether the admissions program closely ‘fits’ the University’s goal when it fails to objectively articulate its goal.”

Fisher’s attorneys have already indicated that they intend to appeal the new ruling.

“It is disappointing that the judges hearing my case are not following the Supreme Court’s ruling last summer,” Fisher said in a statement obtained by The Texas Tribune. “I remain committed to continuing this lawsuit, even if it means we appeal to the Supreme Court once again.”

Edward Blum, one of the attorneys representing Fisher, said he expected the ruling based on comments by the judges during a hearing on the case in November.

“This panel was proven wrong last year by the Supreme Court, and we believe it will be proven wrong once again on appeal,” Blum said, according to the Tribune.

Blum is referring to a June 2013 U.S. Supreme Court decision that remanded the case back to the appeals court with instructions that the appellate judges had previously failed to apply strict scrutiny, the most stringent standard of judicial review, when, in 2011, it ruled in favor of UT-Austin the first time.

“The university must prove that the means chosen by the university to attain diversity are narrowly tailored to” the goal of creating a racially-diverse student body,” Justice Anthony M. Kennedy ordered. “On this point, the university receives no deference.”

“Narrow tailoring also requires that the reviewing court verify that it is ‘necessary’ for a university to use race to achieve the educational benefits of diversity,” Kennedy further wrote. “This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”

The top brass at UT-Austin has indicated that it is pleased with the new appellate decision.

“This ruling ensures that our campus, our state and the entire nation will benefit from the exchange of ideas and thoughts that happens when students who are diverse in all regards come together in the classroom, at campus events and in all aspects of campus life,” said embattled UT-Austin President Bill Powers, according to the Tribune. (RELATED: Scandals, Political Feud Bring Down UT-Austin President)

The NAACP Legal Defense and Educational Fund, Inc. has praised Tuesday’s ruling.

“Universities are incubators for America’s future leadership and for civic engagement,” Sherrilyn A. Ifill, the organization’s president, said in a statement obtained by The Daily Caller. “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.”

Before the case was decided, the Obama administration filed a brief in favor of admissions decisions based on race in the name of diversity. The brief argued that courts must not “second-guess” the decisions of school bureaucrats, according to SCOTUSblog.

Meanwhile, Fisher, the plaintiff in the case, is now a twentysomething graduate of Louisiana State University. She lives and works in Texas.

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