Fifth Circuit Issues Important Ruling on Affirmative Action in Higher Education

by Foley Hoag LLP
Contact

Earlier this week, in Fisher v. University of Texas, a divided panel of the U.S. Court of Appeals for the Fifth Circuit upheld the constitutionality of the undergraduate admissions program at the University of Texas at Austin. Applying the less deferential standard of review mandated by the U.S. Supreme Court in 2013, the Fifth Circuit ruled that UT’s consideration of race in admissions is constitutional because it is narrowly tailored to obtain the educational benefits of diversity and there are no workable race-neutral alternatives that will achieve that goal. Although the Fifth Circuit’s ruling binds only colleges and universities in Texas, Mississippi, and Louisiana, its analysis will likely be viewed as persuasive by other courts hearing challenges to affirmative action programs. However, the ruling may give the Supreme Court another opportunity to strike down such programs altogether.

Many college and university administrators expected the Supreme Court to invalidate all consideration of college applicants’ race when it first ruled in the Fisher case in June 2013. Instead, seven of the eight non-recused justices joined in an opinion that appeared to preserve the status quo and accepted the Court’s earlier affirmative action rulings as given. At the same time, the Supreme Court’s opinion made it harder to defend race-conscious admissions programs in several ways: by requiring each school to articulate a “reasoned, principled explanation” for its interest in the educational benefits of diversity, limiting the deference that courts will apply in reviewing challenged admissions procedures, requiring schools to prove the absence of workable race-neutral alternatives, and discouraging the expeditious resolution of lawsuits through summary judgment.

The Supreme Court remanded Fisher and instructed the Fifth Circuit to determine whether UT had “offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” On Tuesday, the Fifth Circuit held that UT had indeed passed this demanding test. First, the court found that between 1997 and 2004 UT and the Texas legislature had attempted a broad range of race-neutral measures to achieve the diversity essential to its education mission, without success. These measures include the so-called Top Ten Percent Plan, which guarantees Texas residents graduating in the top 10% of their high school class admission to any public university in Texas and, as the Fifth Circuit observed, relies on “increasing resegregation in Texas public schools” to boost minority enrollment in college. (A modified version of this plan remains in effect in Texas today.) UT also initiated scholarship programs targeting under-represented and low-income populations and first-generation students and expanded outreach, recruitment, and financial-aid efforts. Despite these efforts, UT failed to achieve the “critical mass” of African-American and Hispanic students it sought. Second, the Fifth Circuit found that UT’s consideration of race in its search for “holistic diversity” is limited, narrowly tailored, and consistent with programs previously upheld by the Supreme Court. Judge Emilio Garza dissented, arguing that UT failed to adequately define its goal of obtaining a “critical mass” of student diversity and that the majority was too deferential to UT on the issue of narrow tailoring.

This week’s ruling is unlikely to be the last word on the constitutionality of UT’s program. The plaintiff may ask for a rehearing before the 15 active judges on the Fifth Circuit. She may also appeal the case once again to the Supreme Court. Neither court would be obligated to rehear the case. However, the Supreme Court’s ruling in Schuette v. Coalition to Defend Affirmative Action earlier this year demonstrates that the justices remain bitterly divided about the future of race-conscious policies in higher education. Some justices, like Justices Scalia and Thomas, believe they should end now. Others, like Justice Sotomayor, believe they remain essential “to achieve a diverse student body when race-neutral alternatives have failed.” On the other hand, UT’s unusually extensive record of race-neutral alternatives and the limited scope of its race-conscious program continue to make this case a poor vehicle for advocates seeking to undo affirmative action in higher education altogether. The next big case may involve a college or university that is not so well prepared for litigation.


Foley Hoag offers compliance and strategic planning issues for counsel, administrators, and policymakers in higher education on a broad range of issues. For more on key compliance measures following the Supreme Court’s ruling in Fisher v. University of Texas, click here.

On behalf of our client the Asian American Legal Defense and Education Fund, a leading civil rights organization, Foley Hoag filed amicus briefs in the U.S. Supreme Court and U.S. Court of Appeals for the Fifth Circuit urging those courts to affirm the constitutionality of the undergraduate admissions program at the University of Texas.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP | Attorney Advertising

Written by:

Foley Hoag LLP
Contact
more
less

Foley Hoag LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!