A major test of the use of race in college admissions appears headed back to the U.S. Supreme Court after a full federal appeals court on Wednesday refused to reconsider a panel decision that upheld a race-conscious admissions program at the University of Texas at Austin.
The full U.S. Court of Appeals for the 5th Circuit, in New Orleans, voted 10-5 against rehearing the Texas case. In July, a panel of that court ruled 2-1 that the 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 the highest level of constitutional scrutiny.
In a 2013 decision, the Supreme Court had demanded that the appellate court apply the “strict scrutiny” standard to the UT plan. 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 Wednesday, U.S. Circuit Judge Emilio M. Garza wrote a short dissent to the 5th Circuit’s denial of rehearing in Fisher v. University of Texas at Austin. He said the panel majority had failed to genuinely apply the strict scrutiny standard to the university’s plan. Garza then referred to his own more detailed opinion as the dissenting member of the panel.
The Project on Fair Representation, the Washington group that opposes affirmative action and represents Abigail Fisher, a white student who challenged her 2008 denial of admission to UT-Austin under the race-conscious plan, said the case would again be appealed to the Supreme Court. (Fisher has since graduated from Louisiana State University.)
“The justices had to correct the 5th Circuit’s errors the first time Abby Fisher took her case to the high court, and we look forward to making our arguments to them once again,” Edward Blum, the president of the group, said in a statement.
A version of this news article first appeared in The School Law Blog.