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  • Fifth Circuit Upholds the Use of Race in Admissions at the University of Texas

    For a second time, the Fifth Circuit dismissed Abigail Fisher’s claim against the University of Texas at Austin (the “University”), holding that the University’s admissions policy, including the use of race as a factor, passes the strict scrutiny standard and is permissible under the Equal Protection Clause. The case has been in various courts since 2008 and was remanded back to the Fifth Circuit by the U.S. Supreme Court in a 2013 decision.

    The University’s admissions policy consists of two separate processes. Eighty percent of the student body is admitted through the school’s “top 10 percent plan” which grants admission to the top graduates of every high school of the state. The remaining 20% of the students are evaluated and admitted based on a “holistic review program” which evaluates a student based on many factors, including race. Abigail Fisher brought a claim against the University after she was denied admission in 2008. She claimed that the University’s consideration of race in its evaluation process violates the Equal Protection Clause of the United States Constitution.

    The district court granted summary judgment to the University, which was then affirmed by the Fifth Circuit. The Fifth Circuit gave deference to the University in promoting its compelling interest of diversity and deciding the best way to achieve its goals. On appeal, the U.S. Supreme Court ruled that the lower courts erred in granting summary judgment because they did not adequately apply the strict scrutiny test that is required to overcome an Equal Protection Clause Claim.[1] The Court relied on its holdings in Grutter and Gratz, and remanded the case back to the Fifth Circuit for a strict scrutiny analysis.  In Grutter v. Bollinger, the U.S. Supreme Court upheld the use of race as one of the “plus factors” in an admissions program because the process was highly individualistic.[2] On the other hand, in Gratz v. Bollinger, the Court held an admissions program that automatically awarded points to applicants from certain racial minorities to be unconstitutional.[3] The standard is that the admissions process must be narrowly tailored to achieve a compelling interest.[4]

    On July 15, 2014 The Fifth Circuit issued its opinion and reaffirmed the dismissal of Abigail Fisher’s claim upholding the University’s admission process as the most narrowly tailored use of race to achieve diversity. In a 2-1 decision the majority said it was essential to keep the focus on the qualities of the individual students that help make the university a “diverse” community, including minorities.[5] The majority held that the holistic approach, is an individualized approach and the use of race as one of the many to achieve diversity is narrowly tailored to pass the strict scrutiny test. The court referenced its holding to the standards set in Grutter and from the Supreme Court’s Fisher decision in 2013. This time around, the Fifth Circuit gave an in-depth 41 page opinion of the University’s admissions process concluding that the “top 10 percent plan” paralleled with the “holistic approach” was an appropriate process for achieving the school’s interest in achieving the benefits of diversity in its student body.

    Judge Gaza issued a strong dissent stating that he did not believe the University satisfied its burden and that its policy should be nullified. It will be on these sentiments that the Fisher camp will continue in its appeal process. The attorneys for Fisher indicated that they will be appealing but were not sure if the appeal would go directly back to the Supreme Court or first try to get a review by the Fifth Circuit en banc.

    If you or your institution has any questions or concerns regarding education related issues, please contact Cynthia A. Augello at caugello@cullenanddykman.com or at (516) 357-3753.

    A special thank you to Maria Ehlinger, a Summer Associate at Cullen and Dykman LLP, for her assistance with this blog post.

    [1] Fisher v. Univ. of Tex., 133 S. Ct. 2411 (U.S. 2013)

    [2] Grutter v. Bollinger 539 U.S. 306 (2003).

    [3] Gratz v. Bollinger, 539 U.S. 244 (2003).

    [4] Id.

    [5] Lyle Denniston, Fisher challenge on race rejected again, ScotusBlog (July 15, 2014) available at: http://www.scotusblog.com/2014/07/fisher-challenge-on-race-rejected-again/.