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UT Fisher – 5th Circuit

Michael A. Olivas
Michael A. Olivas

July 17, 2014 – A three-judge panel of the U.S. Fifth Circuit Court of Appeals Tuesday upheld a summary judgment in favor of the University of Texas admissions policy in which race is one of many determining factors used in considering applications. The case was brought by Abigail Noel Fisher, a white applicant who claimed she was denied admittance to the university, in part, because of race. The U.S. Supreme Court had remanded for further review the previous summary judgments in favor of the university from a state district court and the Fifth Circuit. University of Houston Law Center Professor Michael A. Olivas, William B. Bates Distinguished Chair of Law and director of the Institute of Higher Education Law & Governance, explains this decision and the effect it may have, if any, on the decades-long fight for and against affirmative action and race-related admissions policies. He was one of the authors of the Texas Percentage Plan, assisting the late state Rep. Irma Rangel in fashioning the race-neutral plan.


Q.)  Assuming Fisher will appeal to the Fifth Circuit en banc or to the U.S. Supreme Court, what new issues are left to argue in this six-year-old case?
The Circuit last time denied review, so I assume they will deny review to this new opinion, which upholds the earlier practices; it is written in a more comprehensive and nuanced way, but certainly meets the requirements set down by SCOTUS that it review the narrow tailoring criterion. I also anticipate the Supreme Court will accept it as a full elaboration of the reasoning behind the UT actions.

Q.)  What are the broader ramifications of this decision?
Race may be used in a modest and narrowly-tailored fashion, and a race neutral-program such as the Percentage Plan does not erase the right of public colleges to use Grutter in a constructive way. Certainly UT was in a position to use race, and did so.

Q.)  Are there similar cases elsewhere working their way through the court system?
None at present, and the Court should let this one sit for a while, and not confuse colleges which have been able to use race since 1978’s Bakke decision.

Q.)  What will it take to put this question to rest once and for all?
Broadly put, applicants must accept that race may be used in a small way to ensure diversity. More than half of the percentage plan admits are the Abigail Fishers—in a state where only 30 percent of high schoolers are Abigail Fishers—and she was not denied admission wrongly. She was not eligible to go to UT-Austin.