You’ve probably heard of Fisher v. University of Texas, even followed it in recent years, but the case has bounced around so much that it’s hard for anyone to keep track.
The basics: Abigail N. Fisher, who was denied admission to the University of Texas at Austin, sued the institution in 2008, arguing that its consideration of race in the admissions process was unconstitutional. Last year the U.S. Supreme Court punted the case back to the U.S. Court of Appeals for the Fifth Circuit, which had previously upheld the admissions policy. The Supreme Court instructed the Fifth Circuit to review the case anew and to apply strict scrutiny to its evaluation of whether the policy passed constitutional muster.
In its decision, issued on Tuesday, a three-judge panel of the Fifth Circuit court ruled, 2 to 1, that the policy was constitutional. The decision gets into the program’s nitty-gritty details, but to understand why the panel’s majority ruled the way it did on the biggest question—whether the consideration of race in admissions is constitutional and necessary to achieve diversity—fast-forward to Page 40 of the opinion.
Judge Patrick E. Higginbotham, writing for the majority, begins by acknowledging the argument that diversity can be achieved without considering race. For instance, Texas’ “Top 10 Percent Plan” guarantees that the highest-achieving high-school students in Texas (many of whom are members of minority groups) will be admitted to a public college in the state:
In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race, this because the Plan produces sufficient numbers of minorities for critical mass.
But that rationale ignores the fact that race is not just a classification of people—a “critical mass” that needs to be met—but a factor that plays a large role in a prospective student’s life, the judge writes:
Race is relevant to minority and non-minority, notably when candidates have flourished as a minority in their school—whether they are white or black.
The judge then pulls out a quote from the U.S. Supreme Court’s 2003 Grutter v. Bollinger ruling, which took a similar view. Armed with that precedent, he sums up the court’s conclusion—that the consideration of race helps the university achieve holistic diversity:
We are persuaded that to deny UT 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.
Then, just for fun, here’s an extended summation that comes a few sentences later:
We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school—not a proffer of societal discrimination in justification for use of race, but a search for students with a range of skills, experiences, and performances—one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from whence they came.
To read the full decision and dissent, click here.Return to Top