July 16 (Bloomberg) -- The University of Texas’s race-conscious admissions program is constitutional, a federal appeals court ruled after it was directed by the U.S. Supreme Court to re-examine the school’s process.
A three-judge panel of the U.S. Court of Appeals in New Orleans upheld the university program in a 2-1 decision yesterday, saying it was a legitimate effort to enhance campus diversity.
Abigail Fisher, a white student, sued after being passed over for inclusion in the incoming class of fall 2008. Fisher claimed she’d have qualified but for the inclusion of race as an admissions factor. She argued her constitutional right to equal protection was violated. The two-judge majority disagreed.
“We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix,” U.S. Circuit Judge Patrick Higginbotham wrote, joined by Circuit Judge Carolyn Dineen King.
The Supreme Court returned Fisher’s case to the New Orleans tribunal last year, after deciding that while universities can use race as part of their admissions criteria, the appellate court hadn’t properly applied the standards set forth by the justices in a 2003 ruling.
Affirmative action has been a fixture on U.S. campuses since the 1960s, diversifying what had been many virtually all-white student bodies. Most of the nation’s selective colleges and professional schools consider race as they seek to ensure a multiracial student body. Blacks and Hispanics now make up more than a quarter of U.S. college students.
Under Texas’s Top Ten Percent Law, the university’s flagship Austin campus admits three-quarters of its freshman class each year solely on the basis of high school class rank. That system, while race-neutral on the surface, ensures a significant number of minorities because it guarantees slots to students at predominantly Hispanic and black schools.
After setting aside the bulk of its incoming space for those residents graduating in the top of their class, the university employs what it calls a “holistic review” process for remaining applicants evaluating measures including test scores, class rank, high school course work, extra-curricular activities and race.
Even if she’d been in a racial minority, Fisher wouldn’t have been admitted, the majority said, citing trial court records.
Dissenting, U.S. Circuit Judge Emilio Garza said his colleagues were impermissibly deferring to the university’s claims.
“The University must explain its goal to us in some meaningful way,” Garza said. “We cannot undertake a rigorous ends-to-means narrow tailoring analysis when the university will not define the ends. We cannot tell whether the admissions program closely ‘fits’ the university’s goal when it fails to objectively articulate its goal.”
Fisher will seek review either from the full New Orleans-based appeals court or from the Supreme Court, said Edward Blum, director of the Project on Fair Representation, which is behind the lawsuit.
“We want to first of all carefully read the opinion and then take our time determining which level of appeal we will pursue,” Blum said in a telephone interview.
The Alexandria, Virginia-based group, founded in 2005, describes itself as a non-profit organization that makes legal representation available to individuals who want to challenge “government distinctions and preferences made on the basis of race and ethnicity” in education, employment, voting and contracting.
Leticia Smith-Evans, director of the NAACP Legal Defense and Educational Fund’s education practice group, said today the organization would do its best to ensure the court’s decision survives any challenge.
“It’s critical to our efforts moving forward that regardless of race, ethnicity or any factor, that everyone has access to and is able to attend diverse institutions of higher education,” Smith-Evans said in a phone interview.
University of Texas at Austin President Bill Powers said the ruling will ensure campus diversity.
“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,” he said in a statement.
The case is Fisher v. University of Texas at Austin, 09-50822, U.S. Circuit Court of Appeals, Fifth Circuit (New Orleans).
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