A divided federal appeals court has once again upheld the constitutionality of a race-conscious admissions program at the University of Texas at Austin, setting the stage for the case to return to the U.S. Supreme Court.
A panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled 2-1 that the flagship UT campus’ “holistic review” program, which potentially takes an applicant’s race into account for roughly one-quarter of the places in the entering freshman class, passes strict scrutiny.
That was the standard the appeals court was asked to apply to the program by the Supreme Court last year in its 7-1 decision in the case. Writing for the majority, Justice Anthony M. Kennedy had said the appeals court could not accept the university’s own assertions that its admissions plan used race in a permissible way.
On remand, the 5th Circuit court panel rejected arguments on behalf of Abigail Fisher—a white student who challenged her admission denial as a violation of the 14th Amendment’s equal-protection clause—that the holistic review plan acts as a form of racial quota.
“Close scrutiny of the data in this record confirms that holistic review—what little remains after over 80 percent of the class is admitted on class rank alone—does not, as claimed, function as an open gate to boost minority headcount for a racial quota,” U.S. Circuit Judge Patrick E. Higginbotham wrote for the majority on July 15 in Fisher v. University of Texas at Austin.
Higginbotham said the state-enacted Top Ten Percent plan, which for the incoming freshman class this year actually admits only the top 7 percent, hobbles UT-Austin’s efforts to achieve the kind of racial diversity it seeks because those admitted under the plan take some 80 percent of the places in the freshman class.
“The sad truth is that the Top Ten Percent Plan gains diversity from a fundamental weakness in the Texas secondary education system,” Higginbotham said. “The de facto segregation of schools in Texas enables the Top Ten Percent Plan to increase minorities in the mix, while ignoring contributions to diversity beyond race.”
The university began taking race into account in its complex holistic review formula in 2005, after the Supreme Court had upheld a similar approach used by the University of Michigan Law School, in its 2003 decision in Grutter v. Bollinger.
Higginbotham noted that in 2005, the proportion of African-Americans in UT-Austin’s freshman class (admitted under either Top Ten Percent or holistic review) was 5.05 percent, a bump up from 4.82 percent the previous year, when race was not taken into account in the holistic review program.
The trend has continued since, climbing to 5.13 percent in 2006, 5.41 percent in 2007, and 5.67 percent in 2008, the last year in the record of the Fisher case.
Similarly, the proportion of Hispanic admitted students climbed from 16.21 percent in 2004, to 17.88 percent in 2005, 18.08 percent in 2006, 19.07 percent in 2007, and 20.41 percent in 2008, he pointed out. (The figures were 5 percent black students and 28 percent Hispanic students in the fall 2013 admitted class, according to UT-Austin.)
“The modest numbers only validate the targeted role of UT-Austin’s use of Grutter,” Higginbotham said. “The small increases do not exceed critical mass nor imply a quota but instead bring a distinct dimension of diversity to the Top Ten Percent Plan.”
“We are satisfied that UT Austin has demonstrated that race-conscious holistic review is necessary to make the Top Ten Percent Plan workable by patching the holes that a mechanical admissions program leaves in its ability to achieve the rich diversity that contributes to its academic mission,” he said.
Writing in dissent, Judge Emilio M. Garza said the university has failed to define its goal of reaching a “critical mass” of underrepresented minority group members.
“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,” Garza said.
Bill Powers, the president of UT-Austin, issued a statement that he was pleased with the 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,” Powers said. “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.”
Fisher issued a statement through the Project on Fair Representation, a Washington group that has backed her litigation from the start.
“It is disappointing that the judges hearing my case are not following the Supreme Court’s ruling last summer,” said the statement by Fisher, who graduated from Louisiana State University last year. “I remain committed to continuing this lawsuit even if it means we appeal to the Supreme Court once again. 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.”
A version of this news article first appeared in The School Law Blog.