Bert Rein of Wiley Rein, who represented Abigail Fisher (right) in Fisher v University of Texas, addresses the media after arguments in the U.S. Supreme Court in October 2012.
Bert Rein of Wiley Rein, who represented Abigail Fisher (right) in Fisher v University of Texas, addresses the media after arguments in the U.S. Supreme Court in October 2012. (Photo: Diego M. Radzinschi/NLJ)

A federal appeals court ruled on Tuesday the University of Texas can continue to use race as a factor in admissions in spite of a U.S. Supreme Court decision in 2013 ordering greater scrutiny of the university’s affirmative-action program.

In Fisher v. University of Texas, Austin in 2013, the high court said the U.S. Court of Appeals for the Fifth Circuit gave too much deference to the university’s defense of the program, and remanded the case to lower courts for “more exacting scrutiny.”

A Fifth Circuit panel ordered more briefing, held oral arguments and on Tuesday reaffirmed its support of the University of Texas program even under the heightened standard. The ruling makes it possible, if not likely, that the case will take a second trip to the Supreme Court for yet another determination whether the program is sufficiently narrow and aimed at achieving a legitimate state goal.

“We are persuaded that to deny U.T. Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience” in contradiction of Supreme Court precedents that found diversity a permissible government goal, the panel stated. “To reject the U.T. Austin plan is to confound developing principles of neutral affirmative action.”

Judge Patrick Higginbotham, who wrote the majority opinion, also noted that under Supreme Court precedents, “universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity. This interest is compelled by the reality that university education is more the shaping of lives than the filling of heads with facts.”

Judge Carolyn King joined Higginbotham’s opinion. Judge Emilio Garza wrote a dissent, asserting that “the majority continues to defer impermissibly to the university’s claims.”

Abigail Fisher first challenged the University of Texas program in 2008 after being denied admission. Fisher, who is white, claimed she was excluded under a holistic review program that gave consideration to applicants’ race among several other factors. The holistic review supplemented a program that gave automatic admission to Texas high school graduates who were in the top 10 per cent of their classes.

Bert Rein of Wiley Rein, who argued Fisher’s case before the Supreme Court, declined to comment on the ruling.

Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, applauded Tuesday’s ruling.

“The Fifth Circuit affirmed that affirmative-action measures taken to advance a university’s compelling interest in fostering a diverse learning environment remains on sound legal footing,” she said. “This decision should stand as a declaration of the ongoing importance and legality of affirmative-action efforts that holistically evaluate applicants for admission in higher education and for the principle of stare decisis.”

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro.