Now pending for almost five years, Fisher v. University of Texas at Austin has been tossed from court to court with no end in sight, and the patience of litigants and judges understandably could be waning. At the same time, public higher-education institutions nationwide are awaiting Fisher‘s input on the use of race as a factor in admissions.

As a Nov. 13 hearing in Fisher v. UT before the U.S. Court of Appeals for the Fifth Circuit concluded, Bert Rein tried to interject as Senior Judge Patrick Higginbotham spoke.

“If I can get a minute,” Rein said to Higginbotham, who had spoken more than any other judge at the hearing—and continued to talk.

Rein, a partner in Washington D.C-based Wiley Rein, represents Abigail Fisher, the white plaintiff who sued the University of Texas at Austin after being denied admittance in 2008. She claimed the university, which admits a fraction of its students through a holistic review process in which it considers race, discriminated against her based on her race.

Background of Fisher v. UT

On Jan. 18, 2011, Higginbotham drafted an opinion in Fisher v. UT, which was the basis on which the U.S. Supreme Court remanded the case to the Fifth Circuit last June, a ruling that led to the recent hearing.

In its 2011 opinion, the Fifth Circuit affirmed a district court ruling against Fisher. Circuit Judges Carolyn Dineen King and Emilio Garza each wrote a concurring opinion.

In his opinion, Higginbotham wrote that Fisher had argued that “UT revealed its true motive to be outright racial balancing when it referenced state population data to justify the adoption of race-conscious admissions measures,” and “if UT were truly focused on educational benefits and critical mass, then there should be no reason to consult demographic data when determining whether UT had sufficient minority representation.”

But, Higginbotham wrote, “We disagree.” UT’s goals matched those outlined by prior U.S. Supreme Court rulings, and UT was not “engaged in improper racial balancing, during our time frame of review,” he wrote, adding that the school’s 2008 admissions policies abided by the high court’s ruling in Grutter v. Bollinger (2003).

Grutter v. Bollinger

In Grutter, the U.S. Supreme Court ruled that the admissions policies of the University of Michigan School of Law, which considered race as one factor for admission, were constitutional, since the school had a compelling government interest in obtaining educational benefits that flow from a diverse student body.

Higginbotham’s 2011 opinion also raised questions about what’s known as the “Top Ten Percent Law,” the state rule governing the majority of admissions at UT, a flagship public university in Texas. Under this law, all students in all Texas public schools who are in the top tier of their high school graduating classes—somewhere between the top 7 percent and 10 percent—are automatically admitted into UT-Austin, regardless of race or other qualifications such as standardized test scores.

UT-Austin then admits a much smaller fraction of students (now 20 percent) through what’s known as a holistic review process. In that process, UT considers applicants’ standardized test scores, special circumstances, personal achievements and race—”as a factor of a factor,” said Gregory Garre, a partner in the Washington office of Latham & Watkins who represents UT and officials, explained at the Nov. 13 hearing.

Fisher had argued that the Top Ten Percent Law same helped UT-Austin achieve diversity. But Higginbotham wrote in his 2011 opinion that the law “does not perform well in pursuit of the diversity Grutter endorsed and is in many ways at war with it.”

Fisher appealed the Fifth Circuit’s decision to the U.S. Supreme Court, and the high court vacated it on June 24. In his opinion, Justice Anthony Kennedy wrote for the 7-1 majority that the Fifth Circuit “did not hold the University to the demanding burden of strict scrutiny articulated” in previous court decisions as governing race-based admissions.

Recent Oral Arguments

At the hearing Nov. 13, however, Higginbotham focused on the inadequacies of the Top Ten Percent Law in achieving diversity and its legacy of tying the hands of the university administration in its admission policies. He said if UT were to admit applicants only by the Top Ten Percent Law “without any other adjustments,” a racially troubling scenario would ensue. The state’s secondary public schools tend to be clustered racially—the vast majority of Dallas Independent School District students are minorities, for instance—he said. Also, the state’s public schools with minorities in the majority tend to be the underperforming ones, he said. Therefore if UT only admits on the basis of Top Ten Percent Law and sheds its holistic review admission program, many Texas public school students will, during the first time they attend a school with a significant population of students who are not their same race, be in a situation where most of the minorities come from underperforming schools.

But Higginbotham was not the only judge at the Fisher hearing last week who seemed knee-deep in the arguments. In his 2011 concurring opinion, Garza wrote, “[D]espite my belief that Grutter represents a digression in the course of constitutional law, today’s opinion is a faithful, if unfortunate, application of that misstep. The Supreme Court has chosen this erroneous path and only the Court can rectify the error. In the meantime, I write separately to underscore this detour from constitutional first principles.”

At the hearing, Garza asked Garre: Isn’t one of the problems with Grutter its use of critical mass of diversity? Garza then noted that all the definitions he has ever heard or read of “critical mass of diversity” are “either tautological, circular, or subjective.”

Garre noted that the use of critical mass of diversity as a broad way to measure the need for race-based admissions “is a decision that has been made by the Supreme Court and has been affirmed in this case.”