Posted on July 16, 2014

Appeals Panel Upholds Race in Admissions for University

Tamar Lewin, New York Times, July 16, 2014

In a long-running affirmative-action case, a three-judge panel of the United States Court of Appeals for the Fifth Circuit on Tuesday upheld the University of Texas at Austin’s consideration of race as one of many factors in admissions.

“We are persuaded that to deny U.T. Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter,” Judge Patrick E. Higginbotham wrote, referring to two previous affirmative-action rulings by the Supreme Court.


Last year, after hearing the initial appeal of the Texas case, Fisher v. University of Texas at Austin, the Supreme Court ruled that public colleges could consider race in admissions under certain conditions, but sent the case back to the appeals court to determine whether the University of Texas’ admissions policies used race narrowly enough to meet the standard laid out by the justices.

Texas’ “Top Ten Percent Plan” guarantees the top graduates of every high school in the state a place at the flagship Austin campus or other universities in the state system, and because many Texas high schools are largely segregated, many black and Latino students are admitted to the university under the plan.

“While the Top Ten Percent Plan boosts minority enrollment by skimming from the tops of Texas high schools, it does so against this backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and 40 percent of black students attend a school with 90 percent-100 percent minority enrollment,” said the majority opinion, in which Judge Higginbotham was joined by Judge Carolyn Dineen King.

While the University of Texas does get some diversity from the plan, the majority opinion said, it can constitutionally make further efforts to increase diversity.


Judge Emilio M. Garza wrote a lengthy dissent, arguing that while the university claims that its use of race was narrowly tailored to meet its diversity goal, it never defined that goal, making it impossible to say whether the use of race actually was tailored to meet it.

The Texas case was filed by Abigail Fisher, a white student who was not in the top 10 percent of her high school class and was denied admission to the university for the fall of 2008, a year in which Top Ten Percent applicants got 81 percent of the seats in the class. The remaining 19 percent were admitted through a holistic review process, in which the university considers not only applicants’ academic records, but also their individual achievements and experiences.

In that context, race may play a role–but whether minority status helps an applicant is not at all clear. In fact, the holistic process accounted for only 12 percent of the black students in the class, and 16 percent of the Hispanics.

Ms. Fisher said Tuesday that she would continue to press her lawsuit, even if it meant another appeal to the Supreme Court. {snip}