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Appeals Court Upholds Use of Race in Texas Admissions

In a case that has been watched closely in education and legal circles, a federal appeals court has upheld the consideration of race in undergraduate admissions to the University of Texas at Austin.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, on Tuesday upheld a program in which the university considers race as one factor for admission after Texas students from the top 10 percent of their high school classes claim places guaranteed by a state law.

The university reinstated race consideration after the U.S. Supreme Court upheld a race-conscious admissions program at the University of Michigan Law School in a 2003 decision known as Grutter v. Bollinger.

Before then, the state had been barred from using race in admissions by a 1996 decision by the 5th Circuit known as Hopwood v. Texas. In response to that decision, the state adopted its Top Ten Percent law, which was designed to boost racial and socioeconomic diversity at University of Texas campuses without express consideration of those factors in the admissions process.

The post-Grutter program is designed to augment the Top Ten Percent law by considering race as a factor in remaining freshman class places at the university. That program was challenged by two white students, Abigail Fisher and Rachel Michalewicz, who were denied admission to the 2008 entering class at the UT main campus in Austin.

A federal district court in Austin upheld the race-conscious program in 2009. In its Jan. 18 decision in Fisher v. University of Texas at Austin, the 5th Circuit court panel agreed that the program did not violate the 14th Amendment's equal protection clause.

"We are satisfied that the university's decision to reintroduce race-conscious admissions was adequately supported by the 'serious, good faith consideration' required by Grutter," U.S. Circuit Judge Patrick E. Higginbotham said in the main opinion.

Higginbotham said the Supreme Court's 2007 decision in Parents Involved in Community Schools v. Seattle School District, which limited the ways K-12 schools could consider race in assigning students to schools, did not retreat from the 2003 Grutter decision's emphasis on a "holistic university admissions program."

"Through the Top Ten Percent Law and Grutter-like plan, UT has increased its minority applicant pool in its effort to ensure that it serves as a flagship university for the entire state, not just Texans of certain backgrounds," Higginbotham said. "Cultivating paths to leadership for underrepresented groups serves both the individual and the public, sustaining an infrastructure of leaders in an increasingly pluralistic society."

Higginbotham warned, however, that the success of the Top Ten Percent law by itself in boosting minority enrollment at the university threatens to eventually weaken the state's justifications for the race-conscious program.

"In this dynamic environment, our conclusions should not be taken to mean that UT is immune from its obligation to recalibrate its dual systems of admissions as needed, and we cannot bless the university's race-conscious admissions program in perpetuity," Higginbotham said.

Judge Carolyn D. King wrote a short concurrence, and Judge Emilio M. Garza wrote a lengthy concurrence stating that he disagreed with the Supreme Court's Grutter decision, but that it was being correctly applied to the race-conscious Texas program.

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