© 2014 The Texas Lawbook.
By Mark Curriden – (July 15) – A federal appeals court ruled late Tuesday that the University of Texas’ use of affirmative action is a fair and constitutionally permissible approach to admitting students.
The U.S. Court of Appeals for the Fifth Circuit, in a case called Fisher vs. the University of Texas at Austin, ruled 2-1 that the college’s consideration of race as a factor was a narrowly tailored part of an overall process designed to secure a diverse student body, as mandated by prior U.S. Supreme Court precedent.
Tuesday’s decision in the Fisher case is the latest in a six-year legal odyssey that started in 2008 and is likely to continue for a couple more years, including an almost certain second trip back to the Supreme Court.
“It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity,” Judge Patrick Higginbotham wrote for the majority. “This interest is compelled by the reality that university education is more the shaping of lives than the filling of heads with facts — the classic assertion of the humanities.”
UT President Bill Powers praised the court decision.
“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 in a written statement. “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.”
Judge Higginbotham’s 41-page opinion, which is filled with detailed statistics, charts and graphics, directly addresses concerns about affirmative action programs previously raised in this case by the Supreme Court.
“Yet the backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass,” Judge Higginbotham wrote in the opinion joined by Judge Carolyn King.
“We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court,” he said.
“To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command—due only a courtesy salute in passing,” Judge Higginbotham wrote in conclusion.
Several legal experts immediately praised Judge Higginbotham for what they describe as “very powerful and effective writing.”
“This is one of the most detailed historical analyses of the issue of affirmative action in school admissions that we have ever seen,” says David Coale, a partner at Lynn Tillotson in Dallas and an expert on the Fifth Circuit.
“In this opinion, Judge Higginbotham is basically saying directly to the Supreme Court that UT’s admissions policy, the process and the outcome are all fair and necessary,” says Coale.
Efforts to obtain a comment from Abigail Fisher and her lawyer were unsuccessful. Fisher sued UT claiming the university’s race-conscious policy violated the 14th Amendment’s Equal Protection Clause and resulted in her being denied admission in 2008.
The lower courts upheld UT’s policies, but the Supreme Court sent the case back to the Fifth Circuit to apply a stricter scrutiny of the program.
Legal experts say there is little doubt that Fisher’s lawyers will appeal to the Supreme Court.
In a 25-page dissent, Circuit Judge Emilio Garza wrote that Judge Higginbotham’s decision “sidestepped” the Supreme Court’s demand that the lower courts apply a new strict scrutiny standard to affirmative action admission efforts.
“Because the university has not defined its diversity goal in any meaningful way — instead, reflexively reciting the term ‘critical mass’ — it is altogether impossible to determine whether its use of racial classifications is narrowly tailored,” Judge Garza wrote.
The Fifth Circuit decision applies to all public universities and colleges in Texas, Louisiana and Mississippi.
Allan Van Fleet, a partner at McDermott, Will & Emery in Houston, calls the decision a “historic win for UT and diversity.” Van Fleet represents the family of Herman Sweatt, who was denied admission to UT in 1946 “for the sole fact that he is a negro.” Sweatt’s challenge of that UT decision led to the Supreme Court’s landmark decision in Sweatt v. Painter.
For legal counsel, UT turned to Gregory Garre of Latham & Watkins’ Washington, DC office. Other lawyers involved for UT are Patricia Ohlendorf of the University of Texas at Austin, Lori Alvino McGill of Quinn Emanuel Urquhart & Sullivan, James Ho of Gibson Dunn and Crutcher in Dallas, and Douglas Laycock of the University of Virginia School of Law.
© 2014 The Texas Lawbook. Content of The Texas Lawbook is controlled and protected by specific licensing agreements with our subscribers and under federal copyright laws. Any distribution of this content without the consent of The Texas Lawbook is prohibited.
If you see any inaccuracy in any article in The Texas Lawbook, please contact us. Our goal is content that is 100% true and accurate. Thank you.