The U.S. Court of Appeals for the Fifth Circuit decided this week that the University of Texas’s consideration of race as a factor among many factors for college and university admissions is legally permissible in Fisher v. University of Texas at Austin. This follows the U.S. Supreme Court’s decision last year in this case that required the University of Texas to show a compelling government interest for its use of race in admissions along with demonstrating that the admissions policy was narrowly tailored to that compelling interest. The University met this hurdle by persuading the Court of Appeals that its use of race for only a small percentage of applicants was necessary to complement the state’s race-neutral policy of accepting the top ten percent of graduates from every Texas high school.

The Court of Appeals explained that “[t]he sad truth is that the Top Ten Percent Plan gains diversity from a fundamental weakness in the Texas secondary education system. The de facto segregation of schools in Texas enables the Top Ten Percent Plan to increase minorities in the mix, while ignoring contributions to diversity beyond race.” For those limited seats not filled by the Top Ten Percent Plan, the University uses race as one factor in a holistic review aimed at selecting students missed by the Top Ten Percent Plan, such as those with special talents or experiences, including the experience of being a minority that attended an “integrated school with better educational resources.”

The Court rejected the plaintiff’s argument that the University should not be able to use race because the Top Ten Percent Plan already ensures a critical mass of minority students. The Court explained that “[r]ace is relevant to minority and non-minority,” for example race is significant “when candidates have flourished as a minority in their school—whether they are white or black.” The Court found that race is appropriately among the factors that the University may use to search for students with a range of skills, experiences, and performances.

News sources report that the lawyers challenging the University’s use of race in student admissions have vowed to appeal, so this decision is not likely to be the final word on this issue. Nonetheless, it does show that an institution can prevail in defending the use of race in student admissions even after last year’s Supreme Court decision; a decision that raised serious questions about the viability of any consideration of race in higher education admissions. Still, in making admission decisions colleges and universities should keep in mind that the Supreme Court very well might again revisit this issue if Fisher is appealed, and institutions of higher learner should remain mindful of the significant hurdles associated with demonstrating that a policy is narrowly tailored to support a compelling interest, as laid out in the Supreme Court’s original Fisher decision.