New Appeal Filed in UT Affirmative Action Case

AUSTIN, Texas—Attorneys for Abigail Fisher have filed the next round of appeals in her challenge to the University of Texas system’s use of race in their undergraduate admissions. Fisher, who is white, first filed suit in 2008 after she was denied admission to the University of Texas at Austin, and the case made it all the way to the United States Supreme Court last year.

Fisher graduated in the top 12% of her class from Stephen F. Austin High School, missing the cutoff for automatic admission to UT Austin pursuant to the “ten percent rule,” a 1997 law that admits the top ten percent of each Texas high school’s graduating class. After being denied admission at UT Austin, Fisher enrolled at Louisiana State University and graduated last year.

The complaint in Fisher v. University of Texas argued that UT’s affirmative action policy did not satisfy the strict scrutiny tests that were set forth in prior affirmative action Supreme Court cases, Grutter v. Bollinger and Regents of the University of California v. Bakke. “Strict scrutiny” is the toughest to satisfy legal standard that a court can apply to evaluate a law, and is invoked in cases where the government actions either infringes upon a fundamental constitutional right or affects a “suspect classification,” such as race. To pass the test, the government has to prove that the law is 1) is justified by a compelling governmental interest, 2) is narrowly tailored to achieve that interest, and 3) is the least restrictive means to do so.

Part of the reasoning in the complaint was that the “ten percent rule” ensured sufficient diversity in the admissions process, and no further consideration of race was needed.

When Fisher reached the Supreme Court, many supporters of affirmative action policies feared that the Court would prohibit or impose even stricter limits on the use of race in college admissions. However, the court ruled 7-1 (Justice Elena Kagan recused herself) that universities could still include race in their evaluations, but restated their commitment to applying the strict scrutiny test to these policies, remanding (in other words, sending the case back for a new review) the case back to the Fifth Circuit Court of Appeals. SCOTUSblog has an excellent recap of the basis for the decision:

"[C]ourts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body. Instead, courts themselves will need to confirm that the use of race is 'necessary' – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body. Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing."

After the case was heard by a three judge panel at the Fifth Circuit, that court ruled to uphold UT’s affirmative action policy, stating that eliminating UT’s “limited use of race” in admissions would impair diversity. Judge Patrick Higginbotham, a Reagan appointee, and Judge Carolyn King, a Carter appointee, ruled in favor of UT, and Emilio Garza, a George H.W. Bush appointee, dissented in favor of Fisher, reasoning that:

"Although the University has articulated its diversity goal as a 'critical mass,' surprisingly, it has failed to define this term in any objective manner. 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.

"By holding that the University’s use of racial classifications is narrowly tailored, the majority continues to defer impermissibly to the University’s claims. This deference is squarely at odds with the central lesson of [the Supreme Court’s ruling]. A proper strict scrutiny analysis, affording the University 'no deference' on its narrow tailoring claims, compels the conclusion that the University’s race-conscious admissions process does not survive strict scrutiny."

Fisher’s latest appeal is for the ruling to be reheard by the Fifth Circuit’s full panel, currently numbering fifteen (two seats are vacant).

Sarah Elizabeth Rumpf is a political and communications consultant living in Austin. You can follow her on Twitter at @rumpfshaker.


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