University of Texas can use race as factor in admission, court rules

A federal appeals court on Tuesday upheld the partial use of race as a factor in admissions at the University of Texas, ruling that the school’s use of race as part of a holistic review process was essential for the university to achieve a diverse student body.

At issue was whether the University of Texas at Austin was relying too heavily on race as a factor in who is admitted to each freshman class. Abigail Fisher, a white student who applied for admission but was rejected in 2008, filed a lawsuit charging that less qualified minority students were admitted in her place because of their race or ethnicity.

A federal judge and an appeals court panel sided with the university. The case went all the way to the US Supreme Court, and it was closely watched by analysts who thought the high court might use Ms. Fisher’s case to bar – or sharply restrict -- the use of race in admissions programs at public universities.

Instead, in 2013, the Supreme Court sent the case back to the Fifth US Circuit Court of Appeals with instructions that the appellate judges take a more critical look at the Texas admissions program.

It is the result of that second look that the appeals court announced on Tuesday. The three-judge panel voted 2 to 1 to uphold the Texas affirmative action program.

“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” at the state’s flagship university, Circuit Judge Patrick Higginbotham said in the majority decision.

He said UT’s holistic review was narrowly tailored to help achieve a critical mass of minority students within the incoming student body.

Some 80 percent of the students admitted to each entering class at Texas are automatically offered seats. They are admitted under a state law that entitles any high school student in the top 10 percent of his or her graduating class to admission to UT.

The Top Ten Percent Plan utilizes segregated housing patterns and segregated school districts across Texas to assemble a racially diverse pool of potential applicants from white, black, and Hispanic neighborhoods.

Texas could fill its entire freshman class through this mechanism, but officials sought to draw into the admissions process other students with special talents who did not rank in the top 10 percent of their class.

The remaining slots in each freshman class at Texas are filled through a holistic admissions process that considers a variety of factors, including race.

Fisher and other critics claim the use of race is unnecessary and unconstitutional.

The appeals court disagreed. “We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school [can as well],” Judge Higginbotham said.

The judge acknowledged that pursuing policies to achieve a desired racial effect “taxes the line between quotas and holistic use of race towards a critical mass.” But he added: “We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race.”

In a dissenting opinion, Circuit Judge Emilio Garza said university officials had failed to meet the high level of judicial skepticism demanded by the Supreme Court.

“Today’s opinion sidesteps the new strict scrutiny standard and continues to defer to the University’s claims that its use of racial classifications is narrowly tailored to its diversity goal,” Judge Garza wrote.

He said UT officials had failed to define the term “critical mass,” and that lacking such a definition it would be impossible for judges to determine whether the school’s use of racial classifications was narrowly tailored.  

“What matters now,” Garza wrote, “is that a state actor’s diversity goals must be sufficiently clear and definite such that a reviewing court can assess, without deference, whether its particular use of racial classifications is necessary and narrowly tailored to those goals.”

He said UT had failed to offer sufficient evidence to support its case.

Fisher’s lawyers are expected to appeal. They can either ask the full Fifth Circuit to hear the case or file a new petition with the US Supreme Court.

The decision won immediate praise from University of Texas President Bill Powers, who called it “a great day for higher education nationwide,” according to the Associated Press.

Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, agreed that the decision would resonate beyond Texas.

“Universities are incubators for America’s future leadership and for civic engagement,” she said. “This decision should stand as a declaration of the ongoing importance and legality of affirmative action efforts that holistically evaluate applicants for admission in higher education.”

The case is Fisher v. University of Texas (09-50822).