[JURIST] The US Court of Appeals for the Fifth Circuit [official website] ruled [opinion, PDF] Tuesday that the University of Texas at Austin (UT) may continue considering race as part of its admission criteria. The US Supreme Court [official website] had remanded the case [JURIST report], Fisher v. University of Texas at Austin [SCOTUSblog backgrounder], to the appeals court last year after finding that the court did not hold UT to the demanding burden of strict scrutiny articulated in Grutter v. Bollinger [opinion; JURIST symposium] and Regents of the University of California v. Bakke [opinion]. On remand, the Fifth Circuit found that UT's affirmative action [JURIST backgrounder] policy was narrowly tailored to achieve the goal of diversity:
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. 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 factsthe classic assertion of the humanities. Yet the backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass. 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, faithful to the content given to it by the Supreme Court. To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without commanddue only a courtesy salute in passing.One judge dissented, arguing that the majority had given too much deference to UT's claims.
Petitioner Abigail Noel Fisher, a Caucasian student, was denied undergraduate admission to UT in 2008 and subsequently challenged the admissions policy, which allows the university to consider race and ethnicity during admissions processing. The Fifth Circuit previously ruled in 2011 that the policy did not violate [JURIST report] Fisher's rights to equal protection under the Fourteenth Amendment and federal civil rights statutes, affirming a lower court decision which granted summary judgment to UT.