The University of Texasâs race-conscious admissions program is constitutional, a federal
appeals court ruled after it was directed by the U.S. Supreme
Court to re-examine the schoolâs process.
A three-judge panel of U.S. Court of Appeals in New Orleans
upheld the university program in a 2-1 decision yesterday,
saying it was a legitimate effort to enhance campus diversity.
Abigail Fisher, a white student, sued after being passed
over for inclusion in the incoming class of Autumn 2008. Fisher
claimed sheâd have qualified but for the inclusion of race as an
admissions factor. She argued her constitutional right to equal
protection was violated. The two-judge majority disagreed.
âWe find force in the argument that race here is a
necessary part, albeit one of many parts, of the decisional
matrix,â U.S. Circuit Judge Patrick Higginbotham wrote, joined
by Circuit Judge Carolyn Dineen King.
The Supreme Court returned Fisherâs case to the New Orleans
tribunal last year, after deciding that while universities can
use race as part of their admissions criteria, the appellate
court hadnât properly applied the standards set forth by the
justices in a 2003 ruling.
Professional Schools
Affirmative action has been a fixture on U.S. campuses
since the 1960s, diversifying what had been many virtually all-white student bodies. Most of the nationâs selective colleges
and professional schools consider race as they seek to ensure a
multiracial student body. Blacks and Hispanics now make up more
than a quarter of U.S. college students.
Under Texasâs Top Ten Percent Law, the universityâs
flagship Austin campus admits three-quarters of its freshman
class each year solely on the basis of high school class rank.
That system, while race-neutral on the surface, ensures a
significant number of minorities because it guarantees slots to
students at predominantly Hispanic and black schools.
After setting aside the bulk of its incoming space for
those residents graduating in the top of their class, the
university employs what it calls a âholistic reviewâ process
for remaining applicants evaluating factors including test
scores, class rank, high school course work, extra-curricular
activities and race.
Even if sheâd been in a racial minority, Fisher would not
have been admitted, the majority said, citing trial court
records.
Dissenting, U.S. Circuit Judge Emilio Garza said his
colleagues were impermissibly deferring to the universityâs
claims.
âMeaningful Wayâ
âThe University must explain its goal to us in some
meaningful way,â Garza said. âWe 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 âfitsâ the universityâs goal when it fails to
objectively articulate its goal.â
Fisher will seek review either from the full New Orleans-based appeals court or from the Supreme Court, said Edward Blum,
director of the Project on Fair Representation, which is behind
the lawsuit.
âWe want to first of all carefully read the opinion and
then take our time determining which level of appeal we will
pursue,â Blum said in a telephone interview.
University of Texas at Austin President Bill Powers said he
was pleased with yesterdayâs decision.
âThis 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,â he said in a statement.
The case is Fisher v. University of Texas at Austin,
09-50822, U.S. Circuit Court of Appeals, Fifth Circuit (New
Orleans).
To contact the reporter on this story:
Andrew Harris in federal court in Chicago at
aharris16@bloomberg.net
To contact the editors responsible for this story:
Michael Hytha at
mhytha@bloomberg.net
David E. Rovella, Peter Blumberg