On Tuesday, July 15th, 2014, the Fifth Circuit of the U.S. Court of Appeals ruled that the University of Texas at Austin’s race-conscious admissions policies are legal.
In a case that was taken up by the U.S. Supreme Court only to be sent back down to the lower courts, the consideration of race at the University of Texas at Austin was upheld in a 2-1 ruling by the Fifth Circuit for the U.S. Court of Appeals.
Ultimately, the appeals court suggested that achieving some diversity through Texas’ top ten percent plan does not preclude the university from pursuing more diversity. The ruling opinion, as described by Scott Jaschik of Inside Higher Ed, stated, "The increasingly fierce competition for the decreasing number of seats available for Texas students outside the top 10 percent results in minority students being under-represented -- and white students being over-represented -- in holistic review admissions relative to the program’s impact on each incoming class," further noting that "Of the incoming class of 2008, the year Fisher applied for admission, holistic review contributed 19 percent of the class of Texas students as a whole -- but only 12 percent of the Hispanic students and 16 percent of the black students, while contributing 24 percent of the white students."
Judge Emilio M. Garza, the lone member in dissent, expressed his belief that the appeals court "continues to defer impermissibly to the university’s claims" regarding its diversity efforts. Judge Garza suggested, "At best, the university’s attempted articulations of 'critical mass' before this court are subjective, circular, or tautological." Judge Garza goes on to say, "The university explains only that its 'concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.' And, in attempting to address when it is likely to achieve critical mass, the university explains only that it will 'cease its consideration of race when it determines ... that the educational benefits of diversity can be achieved at UT through a race-neutral policy....' These articulations are insufficient. Under the rigors of strict scrutiny, the judiciary must 'verify that it is necessary for a university to use race to achieve the educational benefits of diversity.' It is not possible to perform this function when the university’s objective is unknown, unmeasurable, or unclear."