In wake of Fifth Circuit decision on Fisher, much work, uncertainty remain


Abigail Fisher talks to press after her attorneys argued her case in front of the Fifth Circuit Court of Appeals on Wednesday Nov. 13, 2013.  In 2008, Fisher sued the University for discriminating against her admission application based on her race. The fifth circuit court ruled in favor of the University on Tuesday. 


Photo Credit: Charlie Pearce | Daily Texan Staff

On Tuesday, the U.S. Court of Appeals for the Fifth Circuit ruled in a 2-1 decision that UT could continue to use its affirmative action program to promote diversity on campus. The case, Fisher v. University of Texas, has bounced around the legal system for the past six years and isn’t likely to settle down anytime soon. In the meantime, however, we are pleased that the anti-affirmative action agenda behind the case looks one step closer to crumbling and hope that the administration will take this opportunity to redouble its efforts at diversity on campus.

The case involves Abigail Fisher, a 24-year-old white woman who was denied admission to UT-Austin in 2008. Fisher had an SAT score of 1180 out of 1600. In other words, her test scores were by no means awful, but neither were they outstanding. Fisher, though, had no doubts: Her rejection was due to UT’s consideration of race and ethnicity in the admissions process, so, at the urging of conservative operative Edward Blum, she, along with former co-plaintiff Rachel Michaelewicz, filed a lawsuit against the University.

When the case appeared before the Fifth Circuit in 2010, it voted as it did Tuesday, to reject Fisher’s claim. However, when Fisher appealed to the Supreme Court, that body, in a 7-1 decision issued last summer, kicked it back to the Fifth Circuit for further review, arguing that the lower court hadn’t satisfactorily answered the questions of whether holistic review was narrowly tailored to the purpose of increasing diversity and whether the University lacked an alternative workable remedy for achieving that goal.   

On Tuesday, the Fifth Circuit answered both those questions in the affirmative, ruling that UT’s race-conscious holistic review process, which is only applied to students who aren’t admitted under the state’s automatic admission program for high-ranking high school seniors, is constitutional. This board applauds the Fifth Circuit for its correct opinion on this divisive issue. While holistic review isn’t a perfect solution, a reversal of the Fifth Circuit’s previous decision would have prevented further progress from being made on that front.

Now that the case is likely to head back to the Supreme Court, it is unclear what will happen. The court has, in recent times, delivered several blows to affirmative action. Most recently, in April, it voted to uphold Michigan’s voter-approved ban on affirmative action in university admissions. Before that, in the ‘90s, Hopwood v. Texas, a case hitting much closer to home, stripped away the Law School’s right to consider race in admissions. But the constitutionality of affirmative action is still a mystery to the public as a result of the lack of consistency among the court’s opinions on affirmative action cases.

Four times in recent jurisprudential history, the court has also explicitly decided not to overturn the constitutionality of affirmative action programs in higher education. Starting with Regents v. Bakke in 1978; following with the 2003 cases Grutter v. Bollinger and Gratz v. Bollinger, which together overturned Hopwood; and culminating with Fisher v. Texas last year, the court has on several important occasions allowed universities to right the wrongs of centuries of injustice by considering an applicant’s race in the admissions process.

We agree with these latter decisions not just for their moral correctness but also for their observable benefits. The court would do well to hew to them if and when it takes the case back up as study after study has shown that affirmative action programs like UT's not only drastically improve diversity goals on campus but also do not diminish average student quality.

Since Hopwood was overturned in 2003, the University has made great strides in promoting diversity on campus. However, there is still much work to be done. Even with the ability to use race as a factor in the holistic review process, certain populations at UT are still underrepresented. While the administration celebrates this victory, it means nothing if they don’t actually take advantage of opportunities to increase diversity.