TX Affirmative Action Survives After SCOTUS

     (CN) - The University of Texas at Austin can consider race in admitting students, the divided 5th Circuit ruled, just over a year after the Supreme Court said the issue deserved another look.
     Rejected applicants Abigail Fisher and Rachel Michalewicz sued the school after they were denied admission in 2008, claiming the consideration of race violated their 14th Amendment rights. Neither student was admitted under Texas Top 10 Percent Law, a statute that promotes minority enrollment by having state universities automatically admit the top 10 percent of a high school's senior class.
     Over 81 percent of students at UT, those who are not are subjected to a "holistic review program" that considers "special circumstances" including race and socioeconomic status," are admitted under the law.
     Fisher and Michalewicz's case seemed dead in the water after the 5th Circuit affirmed dismissal in January 2011 and then voted 9-7 against rehearing the case.
     Their luck changed in 2013, however, when the Supreme Court vacated dismissal, 7-2, in 2013.
     In the majority opinion, Justice Anthony Kennedy said the 5th Circuit failed to apply the correct standard of strict scrutiny in determining whether the school used any available race-neutral alternatives.
     The 5th Circuit concluded, 2-1, Tuesday the admissions process survives even under strict scrutiny.
     "It is settled universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity," Judge Patrick Higginbotham wrote for the majority.
     The program "was a necessary and enabling component of the Top Ten Percent Plan by allowing UT Austin to reach a pool of minority and non-minority students with records of personal achievement, higher average test scores, or other unique skills," he added.
     "We are satisfied that UT Austin has demonstrated that race-conscious holistic review is necessary to make the Top Ten Percent Plan workable by patching the holes that a mechanical admissions program leaves in its ability to achieve the rich diversity that contributes to its academic mission," the 41-page opinion also states.
     The panel also emphasized that white students receive "the overwhelming majority of the highly competitive holistic review" slots, anyway.
     "Only 2.4% and 0.9% of the incoming class of Texas high school graduates were Hispanic and black students admitted through holistic review," Higginbotham wrote. "That is, admission via the holistic review program - overwhelmingly and disproportionally of white students - is highly competitive for minorities and non-minorities alike. These data persuade us of the force of UT Austin's argument that a limited use of race is necessary to target minorities with unique talents and higher test scores to add the diversity envisioned by Bakke to the student body."
     Judge Emilio Garza took issue in his dissent with the university's description of its diversity goal as a "critical mass."
     "Surprisingly, it has failed to define this term in any objective manner," the 25-page dissenting opinion states. "Accordingly, it is impossible to determine whether the University's use of racial classifications in its admissions process is narrowly tailored to its stated goal - essentially, its ends remain unknown."
     Fisher, now a graduate of Louisiana State University, said she was disappointed with the ruling.
     "I remain committed to continuing this lawsuit even if it means we appeal to the Supreme Court once again," she said in a statement Tuesday.
     The ruling meanwhile gratified UT President Bill Powers.
     "We remain committed to assembling a student body at The University of Texas at Austin that brings with it the educational benefits of diversity while respecting the rights of all students," Powers said Tuesday. "This ruling ensures that our campus, 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."
     Rebecca Robertson, legal and policy director of the ACLU of Texas, said the ruling is "good news" for Texas.
     "The simple fact is, college graduates are better prepared to serve our diverse state when the academic environment includes people from all walks of life and with different life experiences," Robertson said Wednesday. "In ruling on Ms. Fisher's challenge to UT's admission policy, the U.S. Supreme Court accepted [last year] that diversity is an important educational objective."