Affirmative Action in U Texas Admissions|Squeaks by as 5th Circuit Refuses Appeal

(CN) - By 9-7 vote, the full 5th Circuit refused to consider an appeal of a three-judge decision that upheld using race as one consideration in admissions at the University of Texas.

Nine of the ruling's 11 pages are taken up by a dissent from the circuit's chief judge, joined by four other judges.

The case originated in changes to Texas' "Top 10 Percent" law, enacted in 1997 to boost minority enrollment at state universities. After assessing its minority population, the University of Texas in 2004 began including seven special circumstances as factors in considering in-state applicants who were not eligible under the Top 10 Percent law. Among these special circumstances are race and socioeconomic status.

The UT adopted the race-conscious undergraduate admissions program with attention to the 2003 Supreme Court ruling Grutter v. Bollinger, regarding the admissions process at the University of Michigan Law School.

Two students who were denied admission to the University of Texas in fall 2008, Abigail Fisher and Rachel Michalewicz, challenged the constitutionality of UT's admissions process, claiming the consideration of race was discriminatory and violated the 14th Amendment.

They did not challenge the Top 10 Percent law.

A federal judge dismissed the lawsuit and the 5th Circuit panel affirmed the ruling in January.

"Recognizing the pursuit of diversity, including racial diversity, to be a compelling interest in higher education, Grutter endorsed the right of public universities to increase enrollment of underrepresented minorities," Judge Patrick Higginbotham wrote for the three-judge panel. "Grutter also cautioned that, while it accepted diversity as a compelling interest, any sorting of persons on the basis of race must be by measures narrowly tailored to the interest at stake."

In the lengthy dissent to the 5th Circuit's latest ruling, on June 17, the five dissenting judges wrote that the three-judge panel had adopted "a new 'serious good faith consideration' standard of review, watering down" the Supreme Court's requirement for consideration of race only with "strict narrow tailoring. Second, it authorizes the university's race-conscious admissions program although a race-neutral state law (the Top Ten Percent law) had already fostered increased campus racial diversity. Finally, the panel appears to countenance an unachievable and unrealistic goal of racial diversity at the classroom level to support the university's race-conscious policy. 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."

The dissent, by Chief Judge Edith Jones, with four other judges concurring, concludes: "In the end, this case may determine the admissions policies of institutions of higher learning throughout the Fifth Circuit, or beyond, for many years. Reasonable minds may indeed differ on the extent of deference owed to universities in the wake of Grutter, but the panel's effective abandonment of judicial strict scrutiny in favor of 'deference' at every step of strict scrutiny review contradicts Grutter and Parents Involved. The panel approves race conscious admissions whose utility is highly dubious in comparison with the effect of the Top Ten Percent Law. And the opinion's hints supporting 'classroom diversity' are without legal foundation, misguided and pernicious to the goal of eventually ending racially conscious programs. I respectfully dissent from the denial of en banc rehearing."

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