U. of Texas Flagship’s Use of Race in Admissions Can Stand, Court Rules

In a review ordered by the Supreme Court, a divided appellate panel endorses an affirmative-action policy

Reuters / Landov

"This panel was proven wrong last year by the Supreme Court, and we believe it will be proven wrong once again on appeal," Edward Blum, director of an organization that brought the lawsuit on behalf of Abigail Noel Fisher, said on Tuesday. He is shown speaking at a news conference last summer while Ms. Fisher and her father stood by.
July 15, 2014

A federal appeals-court panel handed at least a temporary setback to critics of affirmative action on Tuesday by ruling that a race-conscious admissions policy at the University of Texas at Austin had passed a strict-scrutiny analysis ordered by the U.S. Supreme Court.

In a 2-to-1 decision revealing continued disagreement among the judges over the appropriate standard for evaluating such policies, the panel of the U.S. Court of Appeals for the Fifth Circuit upheld the Texas flagship’s consideration of some applicants’ race as necessary to achieve sufficiently diverse enrollments there.

In response to an overwhelming Supreme Court decision that faulted the Fifth Circuit’s previous endorsement of the undergraduate admissions policy as too deferential to the university, the two judges in the majority said the policy withstood stricter scrutiny than applied before.

The appeals-court panel affirmed, for a second time, a 2009 summary judgment by a U.S. District Court dismissing the lawsuit brought by Abigail Noel Fisher, a white applicant who had accused the Austin campus of illegal discrimination after being denied admission as a freshman the previous year.

Tuesday’s ruling in the case, Fisher v. University of Texas at Austin, almost certainly does not mark an end to the legal battle over the policy. The Project on Fair Representation, an advocacy group that brought the lawsuit on Ms. Fisher’s behalf, said it expected to appeal the decision all the way back to the Supreme Court, if necessary.

"This panel was proven wrong last year by the Supreme Court, and we believe it will be proven wrong once again on appeal," said Edward Blum, the organization’s director.

Judge Emilio M. Garza, the dissenting member of the Fifth Circuit panel in Tuesday’s decision, appeared to lay some of the groundwork for an appeal with an opinion arguing that the majority had again failed to treat the university’s assertions with sufficient skepticism.

"By holding that the university’s use of racial classifications is narrowly tailored, the majority continues to defer impermissibly to the university’s claims," he wrote, adding that such deference "is squarely at odds with the central lesson" of last year’s Supreme Court ruling in the case.

Affirmative Action in the Spotlight

On the other side of the issue, the Fifth Circuit panel’s ruling was cheered by the University of Texas at Austin, by some civil-rights organizations, and by the American Council on Education, a higher-education umbrella organization that has submitted briefs on the university’s behalf.

"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 a statement issued on Tuesday by William C. Powers Jr., the university’s president.

Ada Meloy, general counsel at the American Council on Education, said "institutions need to review this carefully and think about how well they are documenting their efforts, so that they can stand up to any similar challenge."

Considering Options

When the Supreme Court ruled on the case last year, it held, 7 to 1, that the Fifth Circuit had erred in presuming that the university had made a good-faith effort to consider race-neutral alternatives to its policy, and in putting the burden on Ms. Fisher to prove otherwise. It struck down the Fifth Circuit’s 2011 ruling in favor of Texas and remanded the case to the lower court to examine how the admissions policy works in practice.

Writing for the two-member majority in Tuesday’s Fifth Circuit decision, Judge Patrick E. Higginbotham said the Austin campus’s undergraduate admissions policy had held up as constitutional under such an examination. He rejected assertions that the campus had not sufficiently explored race-neutral alternatives to race-conscious admissions or had achieved sufficient levels of diversity through Texas’s "top 10 percent plan," a state law guaranteeing Texas students in the top 10th of their high-school class admission to the public university of their choice.

"We are satisfied," Judge Higginbotham wrote, "that UT-Austin has demonstrated that race-conscious holistic review is necessary to make the Top Ten Percent Plan workable by patching the holes that a mechanical admissions program leaves in its ability to achieve the rich diversity that contributes to its academic mission."

The majority opinion said the top-10-percent plan, with its focus on class rank, "came with significant costs to diversity and academic integrity, passing over large numbers of highly qualified minority and non-minority applicants." A separate holistic review process, which Austin used to fill the 20 percent of freshman seats not based on class rank, "would approach an all-white enterprise" if the campus considered only test scores and did not take into account applicants’ contributions to diversity.

Considering race in the holistic admissions process helps the university admit minority students who "otherwise would be missed in the diversity mix," such as those with talents beyond class rank, or those who had attended integrated, wealthier schools where they were less likely to be in the top 10th of their class, Judge Higginbotham wrote.

Citing a long list of scholarship and outreach programs established by the university to promote diversity, Judge Higginbotham wrote that the court record "shows that UT-Austin implemented every race-neutral effort that its detractors now insist must be exhausted prior to adopting a race-conscious admissions program."

Not Strict Enough?

Judge Garza’s dissent accused the Fifth Circuit panel’s majority of sidestepping the sort of strict-scrutiny analysis ordered by the Supreme Court and continuing to defer to the university’s claims.

He argued, for example, that the majority had accepted the university’s professed goal of seeking a "critical mass" of minority students without asking the university to define "critical mass" in any objective manner. Without having a clear definition of the university’s goal, he said, the court could not determine whether the university’s race-conscious admissions policy was narrowly tailored to meet that goal, or whether its race-neutral efforts were sufficient.

Judge Garza said the university had similarly failed to articulate its goals when it spoke of seeking to admit minority students whose contribution to campus diversity extended beyond race. He denounced, as based on abhorrent racial stereotypes, the university’s assertions that it would not admit the right mix of minority students if its diversity efforts depended on the 10-percent plan’s ability to draw top students from predominantly minority public schools.

In response to the university’s assertions that Ms. Fisher had lacked the academic credentials to qualify for holistic admission, Judge Garza said such an argument failed to take into account how the admissions cutoff for such students might have been changed by the removal of racial considerations from the admissions process.