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Fisher challenge on race rejected again

Ruling that the Supreme Court has not barred all use of race in choosing the entering class of students at state universities and colleges, a federal appeals court on Tuesday upheld — for a second time — the admissions policies at the University of Texas in Austin.  The two-to-one decision by the U.S. Court of Appeals for the Fifth Circuit followed the Supreme Court’s return of the case of rejected white applicant Abigail Fisher for a focused new look at the need for a race factor.

Ms. Fisher’s lawyers said that they planned a new appeal to challenge this latest decision against her challenge to the university’s current admission plan.  The lawyers did not specify whether they would return directly to the Supreme Court or instead first attempt to get a new review by the full Fifth Circuit sitting en banc.

Although the use of race now figures in the selection of fewer than one out of every five entering first-year students at the state’s flagship university, the Fifth Circuit majority said it was essential to keep the focus on the qualities of the individual students that help make the university a “diverse” community, including minorities.

It would not be enough to achieve the diversity goal, the majority said, to limit first-year admissions to the university to the so-called “Top Ten Percent Plan” — a plan that automatically admits every Texas student who graduates in the top ten percent of his high school class, if he wants to enroll at Austin.

It was necessary, the court concluded, to add a plan of “holistic review” focused on individuals’ personal characteristics, to make the student body open to the educational benefits of diverse social backgrounds and experiences.

In the most recent year, the Top Ten Percent Plan accounted for eighty-one percent of the first-year class, leaving only about nineteen percent of the available seats to be filled competitively by use of the “holistic review” process — the only part of the process in which race figures at all and then, the majority stressed, only as one factor among several, without any numerical quotas.

The panel majority rejected the argument of Ms. Fisher’s lawyers that the race-neutral Top Ten Percent Plan is sufficient to assure minority enrollment in the university, so there is no need to adopt a race-conscious policy that goes beyond that plan.

In reaching its new decision, the Fifth Circuit majority said that it was being faithful to the Supreme Court’s 2003 ruling that allowed public universities to use race as an admissions factor, as long as it was only a part of a broader look at applicants, and to the Supreme Court’s ruling a year ago in Fisher’s case.

Fisher’s lawyers had taken her constitutional challenge to the Supreme Court, arguing that the university had not justified the race-conscious part of its admissions plan that it adopted in the wake of the 2003 decision by the Justices in a University of Michigan Law School case (Grutter v. Bollinger).

In a seven-to-one decision a year ago in June in the Fisher case, the Supreme Court said the Fifth Circuit had not applied the correct legal analysis to the Texas admissions policy, and ordered a new review.  The Court declared that, while courts must respect the view of universities that there are educational benefits from diversity among the student body, courts should judge for themselves — without deferring at all to university views — on whether the plan they adopt actually is the narrowest use of race to achieve a goal of diversity.

In its new decision, the Fifth Circuit majority said it had done just that, releasing a forty-one-page opinion that examined in detail all facets of how the Top Ten Percent Plan and the separate “holistic review” plan had worked.  It found that the two were necessary, working together.

Senior Circuit Judge Patrick E. Higginbotham wrote the majority opinion, joined by Senior Circuit Judge Carolyn D. King.  Senior Circuit Judge Emilio M. Garza wrote a twenty-six-page dissenting opinion, arguing that the University of Texas had failed to satisfy its burden that it had to make use of race to achieve diversity.  Judge Garza said he would have nullified the current policy.

Before examining the merits of Fisher’s challenge, the Fifth Circuit said it had no authority to consider the university’s renewed claim that Ms. Fisher lacked a legal right to continue pursuing her challenge.  It said the Supreme Court had settled that in her favor, even though the Justices did not discuss that issue in the ruling last year.

The Fifth Circuit, in another preliminary ruling, declined to send the case back to a district court judge to develop new facts about the admissions practices at the Austin campus.

Recommended Citation: Lyle Denniston, Fisher challenge on race rejected again, SCOTUSblog (Jul. 15, 2014, 6:25 PM),