Appeals court upholds UT's use of race in admissions

Courtesy Bloomberg
By Andrew Harris and Greg Stohr

The University of Texas's 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 school's 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 she'd 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.

"We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix," U.S. Circuit Judge Patrick Higginbotham wrote, joined by Circuit Judge Carolyn Dineen King.

The Supreme Court returned Fisher's 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 hadn't 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 nation's 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 Texas's Top Ten Percent Law, the university's 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 "holistic review" process for remaining applicants evaluating factors including test scores, class rank, high school course work, extra-curricular activities and race.

Even if she'd 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 university's claims.

‘Meaningful Way'

"The University must explain its goal to us in some meaningful way," Garza said. "We 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 ‘fits' the university's goal when it fails to objectively articulate its goal."

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.

"We want to first of all carefully read the opinion and then take our time determining which level of appeal we will pursue," Blum said in a telephone interview.

University of Texas at Austin President Bill Powers said he was pleased with yesterday's decision.

"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," 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


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