Lawyers for Abigail Fisher, who has been pursuing a lengthy court challenge to the use of race in admitting students to the University of Texas in Austin, on Tuesday asked the full U.S. Court of Appeals for the Fifth Circuit to reconsider a new decision upholding the policy. En banc review is necessary, the new petition argued, because the majority of the three-judge panel disobeyed orders from the Supreme Court to rethink a prior ruling allowing some use of race.
Last year, the Supreme Court returned the case to the Fifth Circuit, with instruction to apply a new and more restrictive analysis to the part of the Texas admissions plan that relies in part upon the applying students’ race to fill about one-fifth of each freshman class. Earlier this month, the panel upheld the plan for the second time, finding that the university had again made its case.
The case involves a young white woman from Sugar Land, Texas, who failed to gain admission to the state’s flagship university and claimed that her race was the reason. Her lawyers in the new plea for Fifth Circuit review again argued — as they had before the Supreme Court — that no use of race was necessary, since a prior plan passed by the legislature that automatically admits the top ten percent of graduating classes from state high schools was supplying enough minority students to achieve any goal of diversity in the student ranks.
In its new ruling, the majority of the three-judge Fifth Circuit panel found that, once the top-ten-percent group was admitted, it was still necessary to have a program that looked at the personal qualities of individual applicants to assure that high-performing minority students would be in the entering classes in sufficient numbers to achieve true diversity. This “holistic” approach is the only part of the admissions policy in which race is one, but not the only, factor in choosing first-year students.
Fisher’s attorneys laid out in their new filing a lengthy list of grievances about the case as it now stands, including claims that the university simply made up new arguments for purposes of defending itself in court again, and claims that the majority of the panel did not apply a rigorous analysis to the racial factor, instead letting itself be persuaded by policy arguments newly fashioned by the university.
The panel had gone too far, the new petition contended, in sharply criticizing the quality of the minority students who were admitted under the top-ten-percent plan, and assumed wrongly that they as a group were less talented than first-year students chosen by the “holistic” review policy. This, the filing contended, was a new form of racial stereotyping.
This case, the petition said, is being watched by college officials across the nation, because the Fisher lawsuit has the potential of settling just when and how far race public colleges may go in their admissions programs in all of the states.
In sending the case back for a more pressing analysis, the Fisher lawyers asserted, the Supreme Court had looked to the Fifth Circuit to apply the Justices’ new mode of reviewing racial factors in college admissions. But the panel majority simply failed to follow the Supreme Court’s mandate, the attorneys argued.
After the same panel had upheld the admissions policy previously, the Fifth Circuit refused to grant rehearing en banc. After that, Fisher’s counsel took the case to the Supreme Court. It seems a near certainty that they would again seek Supreme Court review, if reconsideration is again denied by the en banc court.