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Univ. of Texas Can Still Use Affirmative Action: 5th Cir.

By Brett Snider, Esq. on July 16, 2014 | Last updated on March 21, 2019

The University of Texas at Austin can continue its affirmative action program, after a federal appeals court upheld its use on Tuesday.

In a 2-1 vote, a panel of the 5th U.S. Circuit Court of Appeals cleared the use of race in undergraduate admissions, Reuters reports. This decision comes more than one year after the U.S. Supreme Court ordered the case to be returned to the 5th Circuit and be examined under more exacting scrutiny.

Why did affirmative action make it in this case?

Remanded for Strict Scrutiny

The Supreme Court had remanded the case to the 5th Circuit in 2013 after ruling that the lower court had used the wrong standard in evaluating UT's affirmative action policies. Namely, the 5th Circuit placed the burden on Abigail Fisher, the plaintiff, to show that UT had acted in less than good faith in implementing its program.

As the Court explained, this isn't the standard for judging affirmative action programs. Educational programs that use race as a criterion must be evaluated under strict scrutiny, meaning it must be narrowly tailored to serve a compelling state interest. And the burden of proving that an affirmative action program in a public university meets strict scrutiny lies with the state, not the challenging party.

The 5th Circuit had initially deferred to UT in its estimation that the program was serving a compelling interest and was narrowly tailored, but after the Supreme Court's ruling, it was forced to take a closer look.

UT Program Meets Higher Scrutiny: 5th Circuit

UT currently has two admissions plans which serve to increase the diversity of its student body:

  • A plan that allows the top 10 percent of high school graduating classes to be automatically admitted to UT, and
  • A race-conscious program which evaluates students in the general pool of applicants based on many factors, including race.

Since Fisher was not in the top 10 percent of her high school's graduating class, she was evaluated and denied admission under the latter program, which took her race into account. On closer inspection, the 5th Circuit found that this affirmative action policy was part of a "holistic" admissions process, very similar to one that the Supreme Court upheld in 2003.

The appellate court felt this upheld the compelling interest in diversity, by way of increased perspectives, that was narrowly tailored enough to pass constitutional muster.

Fisher, who's already graduated from Louisiana State University, remains undeterred, and "remains committed to continuing this lawsuit."

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