Yesterday, the full Fifth Circuit Court of Appeals declined to rehear the case of Abigail Fisher, who has unsuccessfully been challenging the University's limited use of race-based affirmative action for years now.
Fisher, as you may recall, saw her case on the constitutionality of the process reach the United States Supreme Court about two years ago. The high court allowed affirmative action to remain in place, but held that the Fifth Circuit erred in not strictly scrutinizing the process at the University. Using the mandated "strict scrutiny," the Fifth Circuit once again affirmed the constitutionality of UT’s holistic review process, which includes race-based affirmative action. With the full court declining to rehear the case, Fisher's last respite is another round at the Supreme Court, which Edward Blum, whose Project on Fair Representation has provided funding for Fisher’s case, has implied will be her course of action.
The Supreme Court will likely not hear Fisher's appeal, and this embarrassing saga for the University will finally come to an end. And, whatever one's personal opinions on affirmative action or other preference-type programs, the end of this case should be viewed as a very good thing.
Far from being an ideal plaintiff for such a case, Fisher does not do justice to the important constitutional fight this complex issue warrants. She initially filed suit against the program after being denied admission to the University as a high school senior. This, despite the fact that her grades, test scores and other factors placed her well below the typical range of admitted applicants, black or white.
Personally, I support affirmative action and think its limited use at the University has countless positive impacts. But even for those who do not support the program, it should be recognized that Fisher is a rather lousy advocate against it. It's time for her to give up this case, once and for all.
Horwitz is an associate editor.