A three-judge panel of the Fifth Circuit Court of Appeals found the racial and ethnic classifications and preferences of the Univ. of Texas’s admissions polices to be constitutional.
The case, Abigail Fisher v. Univ. of Texas, was decided by the U.S. Supreme Court on June 24, 2013. In a 7-1 opinion authored by Justice Anthony Kennedy (Justice Kagan recused), the justices vacated an earlier ruling by the same three-judge panel writing that the Fifth Circuit did not properly apply the correct legal standard for using race preferences in the admissions process. The case was then remanded back to the panel for the application of the proper legal standard know as “strict scrutiny.”
Last November, during arguments in Austin, Texas before the panel, Ms. Fisher’s lawyers argued that UT was precluded from using racial and ethnic classifications and preferences because of the success of the race-neutral Top Ten Percent Plan which resulted in greater minority diversity at UT than did an earlier racial preference program. Strict scrutiny requires that a university implement race-neutral admissions policies to achieve diversity before lastly resorting to race preferences.
Abigail Fisher said, “It is disappointing that the judges hearing my case are not following the Supreme Court’s ruling last summer. I remain committed to continuing this lawsuit even if it means we appeal to the Supreme Court once again.”
Fisher added, “It is a shame that for the last six years, hundreds of UT applicants were denied admission because of UT’s racial and ethnic preferences.”
Edward Blum, director of the Project on Fair Representation (POFR), said, “While disappointing, this opinion was not unexpected based upon the questioning and comments made by the court during our last hearing in November.”
Blum continued, “This panel was proven wrong last year by the Supreme Court and we believe it will be proven wrong once again on appeal.”
POFR is a legal defense foundation based in Alexandria, Virginia that has provided pro bono legal representation to individuals and jurisdictions in a number of important U.S. Supreme Court cases, including in NW Austin MUD v. Holder, Shelby Co. Ala. v. Holder and Abigail Fisher v. Univ. of Texas-Austin.