The Fifth Circuit Court of Appeals upheld the University of Texas' consideration of race in its admissions process, writing in their 2-1 decision that the university's affirmative action practices are narrowly tailored to increasing diversity at the school. The case, Fisher v. University of Texas at Austin, had been vacated and remanded by the Supreme Court last year.
"We are persuaded that to deny UT-Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter," Judge Patrick Higginbotham wrote for the majority. More from Politico:
In Fisher v. University of Texas at Austin, two affirming judges wrote they were "persuaded" that Texas necessarily used race in a "holistic" admissions process, noting that the courts have already settled that universities may use race to achieve diversity and promote equality of opportunity when alternatives would require an even greater use of race.
"Yet the backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race toward a critical mass. We have hewed this line here," Patrick Higginbotham wrote for the assenters. "To reject the UT Austin plan is to confound developing principles of neutral affirmative action."
The third judge echoed that concern in his dissent, saying that Tuesday's opinion "sidestepped" the new strict scrutiny standard and that Texas has failed to offer up evidence that its program is legitimate.
"Because the University has not defined its diversity goal in any meaningful way — instead, reflexively reciting the term 'critical mass' — it is altogether impossible to determine whether its use of racial classifications is narrowly tailored," he wrote.
Abigail Fisher, who brought the suit in 2008 after being denied admission to school, said she plans to appeal the ruling.
“It is disappointing that the judges hearing my case are not following the Supreme Court’s ruling last summer. I remain committed to continuing this lawsuit even if it means we appeal to the Supreme Court once again,” she said in a statement. “It is a shame that for the last six years, hundreds of UT applicants were denied admission because of UT’s racial and ethnic preferences."
[Image of Abigail Fisher via AP]