Back on remand from the Supreme Court, the U.S. Court of Appeals for the Fifth Circuit this week upheld the use of affirmative action in admissions by the University of Texas at Austin.
In a 2-1 ruling, Judge Patrick Higginbotham and Judge Carolyn King ruled that the university’s limited use of race as a factor in admitting students to its Austin campus does indeed survive strict scrutiny—a tougher judicial standard required after the Supreme Court’s 2013 ruling in Fisher v. University of Texas.
“It is settled that instruments of state may pursue facially neutral policies calculated to promote equality of opportunity among students to whom the public schools of Texas assign quite different starting places in the annual race for seats in its flagship university,” wrote Higginbotham. “It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity.”
“This interest is compelled by the reality that university education is more the shaping of lives than the filling of heads with facts—the classic assertion of the humanities,” he added.
Standing alone in dissent, Judge Emilio Garza said UT Austin managed to avoid the glare of strict scrutiny by retaining ambiguity in its stated aims.
“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.
UT Austin utilizes a two-pronged system for promoting diversity in its student population. Its “Top Ten Percent Plan” guarantees admission to any student in a Texas public high school who graduates in the top 10 percent of his or her class. It accounts for nearly 80 percent of incoming students.
The remaining 20 percent of students are chosen after a “holistic review” that considers a wide range of factors—for example, academic performance, leadership qualities, and extracurricular activities—in evaluating each applicant. Race is but one of many such factors.
The plaintiff, Abigail Fisher, applied to UT Austin in 2008. After failing to qualify for the Ten Percent Plan, Fisher was tossed into a pool of 17,131 applicants vying for 1,216 remaining seats. She was ultimately rejected after the holistic review process, later turning to the courts to argue that, as a white woman, she had suffered unconstitutional racial discrimination under the Fourteenth Amendment.
Higginbotham was careful to distinguish the inclusion of race as an acceptable factor in admissions from the use of racial quotas to achieve a particular demographic distribution. The court was able to walk that fine line, he said, because it was persuaded of the university’s “necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race.”
The majority relied heavily upon two landmark Supreme Court cases on the merits of affirmative action. In University of California v. Bakke (1978), the high court recognized the permissible use of race as one of several criteria for admissions in higher education. And in Grutter v. Bollinger (2003), the Court affirmed its ruling in Bakke, noting that individual review of each applicant prevents the predominance of any one factor—including race—in determining acceptance.
“To reject the UT Austin plan,” said Higginbotham, “is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command—due only a courtesy salute in passing.”
Fisher, now an alumna of Louisiana State University, has vowed to appeal to the Supreme Court.
On the other hand, UT President Bill Powers is pleased with the Fifth Circuit’s decision.
“We remain committed to assembling a student body at The University of Texas at Austin that brings with it the educational benefits of diversity while respecting the rights of all students," he said in a statement. "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."
Nicandro Iannacci is a web strategist at the National Constitution Center.
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