Federal Appeals Court Hands Setback to Foes of Race-Conscious Admissions

June 20, 2011

The U.S. Court of Appeals for the Fifth Circuit has decided not to rehear a lawsuit challenging the race-conscious admission policy at the University of Texas at Austin, effectively leaving in place a decision by three of its members to uphold the policy, and handing a major setback to affirmative-action critics who argue that the policy is unconstitutional because race-neutral alternatives exist.

In a decision announced on Friday, judges of the Fifth Circuit voted, 9 to 7, to deny a request that it rehear the case. The majority did not give a reason for its decision, but five members of the minority joined in writing a dissent strongly denouncing the January ruling—by a three-member panel of the Fifth Circuit's judges—that the full court was letting stand.

Although the members of three-judge panel had ruled that they were simply applying the standards articulated in the U.S. Supreme Court's last major ruling upholding race-conscious admissions, the 2003 Grutter v. Bollinger decision upholding the use of race-conscious admissions by the University Michigan's law school, the judges who dissented on Friday argued that the January ruling actually had strayed from the Grutter majority's logic.

The three-judge panel, the Fifth Circuit's dissenters argued, had watered down the Grutter decision's standards for determining whether race-conscious admission policies were constitutional, by showing far too much deference to the views of college administrators.

The panel had also accepted the university's return to race-conscious admissions even though the Austin campus had achieved a significant level of diversity in its enrollment by conforming to a race-neutral state law requiring it to admit Texas students in the top 10th of their high-school class, the dissenters said. And, they added, the panel had appeared willing to let the university consider applicants' race as much as necessary to try to bring about "an unachievable and unrealistic goal of racial diversity at the classroom level."

Lawyers for the University of Texas at Austin, in their brief discouraging the Fifth Circuit from rehearing the case, had disputed such criticisms of the January ruling and argued that the university's policies closely adhered to the guidance offered in the majority opinion in Grutter.

Friday's decision essentially ends the Texas legal battle unless the plaintiffs in the lawsuit can persuade the U.S. Supreme Court to take up the case. Edward J. Blum, director of the Project on Fair Representation, a group that helped represent the plaintiffs, said on Monday that the plaintiffs' legal team was still reviewing last week's decision to determine how to proceed.