Posted on June 22, 2011

Federal Appeals Court’s Decision Could Expand Affirmative Action, Says Chief Judge

David Paulin, American Thinker, June 22, 2011

A Federal appeals court has rejected a challenge made by two white students against a controversial affirmative action program at the University of Texas in Austin–a decision that could expand race-based admissions nationwide, according to a dissenting judge in the case. The case, Fisher v. the University of Texas in Austin, may head to the U.S. Supreme Court, say observers.


At issue was a complaint filed in 2008 by two white students, Abigail Fisher and Rachel Michalewicz. They contended the University of Texas in Austin had violated their constitutional rights by rejecting their applications because of their race. They’d wanted the full appeal’s court to rehear their complaint.


In her powerful dissent, Chief Judge Edith H. Jones –a Republican whom President Ronald Reagan appointed to the 5th Circuit in 1985–criticized the court for failing to undertake a “strict scrutiny” of the university’s affirmative action program; it instead gave “total deference to university administrators,” she wrote.

Most significantly, Jones said the court’s decision was potentially precedent-setting and could expand affirmative action programs in the nation’s public universities. “This decision in effect gives a green light to all public higher education institutions in this circuit, and perhaps beyond, to administer racially conscious admissions programs without following the narrow tailoring that Grutter requires,” she wrote, referring to the U.S. Supreme Court’s 2003 decision in Grutter v. Bollinger.

In that landmark decision, the court ruled in favor of the “narrowly tailored” affirmative action policy of the University of Michigan Law School. The court nevertheless stressed that “race-conscious admissions policies must be limited in time,” perhaps running their course in 25 years.


Regarding the potentially absurd outcomes of the affirmative action program, she wrote:

“The pernicious impact of aspiring to or measuring “diversity” at the classroom level seems obvious upon reflection. Will the University accept this “goal” as carte blanche to add minorities until a “critical mass” chooses nuclear physics as a major? Will classroom diversity “suffer” in areas like applied math, kinesiology, chemistry, Farsi, or hundreds of other subjects if, by chance, few or no students of a certain race are enrolled? The panel opinion opens the door to effective quotas in undergraduate majors in which certain minority students are perceived to be “underrepresented.” It offers no stopping point for racial preferences despite the logical absurdity of touting “diversity” as relevant to every subject taught at the University of Texas.”