Constitutional Law

5th Circuit upholds race in admissions at the University of Texas

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A federal appeals court has upheld the use of race in admissions at the University of Texas at Austin in the remand of a case decided by the U.S. Supreme Court in 2013.

The New Orleans-based 5th U.S. Circuit Court of Appeals upheld the university’s admissions plan in a suit by Abigail Fisher, who was denied admission to the university. The 5th Circuit said the university’s admissions plan was constitutional under a strict scrutiny analysis demanded by the U.S. Supreme Court 2013.

The opinion, issued on Tuesday, is here (PDF). The New York Times, Reuters, the Austin-American Statesman and the National Law Journal have coverage.

Fisher didn’t qualify for admission under UT’s “top 10 percent plan,” which granted admission to the top graduates of every high school of the state and to those with an exceptionally high “academic index” score, based on test scores, high school class rank and high school coursework. Nor did she gain admission under the university’s holistic review program, which evaluates every applicant based on achievements and experiences, along with their academic index.

Even if Fisher had a perfect score based on achievements and experiences—and even if she were a minority—she would not have been admitted in the fall of 2008, the 5th Circuit opinion said. Competition is fierce in the holistic review program, which considers remaining applicants after 80 percent of the slots are filled through the top 10 percent program. As a result, the court said, minority students are underrepresented in holistic review admissions, relative to the percentage of students admitted under the top 10 percent program.

The holistic review program, the court said, “was a necessary and enabling component of the top 10 percent plan by allowing UT Austin to reach a pool of minority and nonminority students with records of personal achievement, higher average test scores, or other unique skills.”

The holistic plan’s use of race was narrowly tailored to make the admissions plan succeed, the court said. The holistic review made the top 10 percent plan workable “by patching the holes that a mechanical admissions plan leaves in its ability to achieve the rich diversity that contributes to its academic mission.”

Fisher has graduated from Louisiana State University. “I remain committed to continuing this lawsuit even if it means we appeal to the Supreme Court once again,” she said in a statement.

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