In a case involving the consideration of race in university admissions, the Fifth Circuit denied en banc rehearing by a narrow 9-7 margin, over a vehement dissent by Edith Jones (nominated by Reagan), joined by 4 other judges. Fisher v. University of Texas at Austin, No. 09–50822, 2011 WL 2420984 (5th Cir. Jun 17, 2011). The court reviewed a University of Texas admission policy tailored to comply with the Supreme Court’s opinion in Grutter v. Bollinger, 539 U.S. 306 (2003), which was a 5:4 opinion written by Justice O’Connor. The Fifth Circuit panel decision written by Judge Higgenbotham (nominated by Reagan) was disputed as well. Judge King (nominated by Carter) concurred in the judgment and the discussion of Grutter, but suggested that the court had addressed issues neither raised nor briefed. Judge Garza (nominated by George H.W. Bush) concurred in the judgment, agreeing that Higgenbotham had been faithful to Grutter and arguing that Grutter was wrongly decided. Fisher v. University of Texas at Austin, 631 F.3d 213 (5th Cir. 2011). The NAACP LDF and MALDEF were among racial justice amici. Judge Garza voted against rehearing en banc.
The case was brought by two Caucasian women who were denied admission to the University of Texas (UT). They filed suit, alleging that the school’s admissions policies discriminated against them on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment and federal civil rights statutes. They sought damages, as well as injunctive and declaratory relief; the district court found no liability and granted summary judgment to UT. On appeal, the appellants denied any intention to reapply to UT and so the court found that both lacked standing to seek injunctive or declaratory relief, leaving only the claim for money damages.
In response to Hopewood v. Texas, 78 F.3d 932 (1996) (Fifth Circuit panel holding that diversity in education was not a compelling state interest), the Texas legislature passed the facially race-neutral Top Ten Percent Law, which mandated that Texas high school seniors in the top ten percent of their class be automatically admitted to any Texas state university. Then, after Grutter held that the Equal Protection Clause did not prohibit a school’s narrowly tailored use of race in admissions to further the compelling interest of a diverse student body, UT changed its admissions policy to include race as one factor in its larger admissions scoring index.
Judge Higgenbotham’s opinion began by stating that Grutter recognized the pursuit of diversity as a compelling interest in higher education . UT’s Grutter-like admissions process was subject to strict scrutiny, although the court noted that, when evaluating race-based government action, a university’s educational judgment in developing diversity policies is due deference.
The Appellants first contended that UT went beyond taking an interest in diversity for education’s sake and actually attempted “race-balancing” in order to make the population of its school reflect the demographics of the state of Texas. Under Grutter, increasing racial representation is not a sufficiently compelling interest to justify the use of racial preferences. The court found that UT’s admissions policy took care to avoid a quota system by never establishing a specific number, percentage, or range of minority enrollment sufficient to create its “critical mass.” While the university does look at the number of minority enrollment to evaluate whether it has reached its critical mass, a good faith effort to come within range of a self-set goal is not the same as a quota system. Grutter, 539 U.S. at 335.
The appellants further argued that the UT’s admissions process was unconstitutional because the Top Ten Percent Law was a facially race-neutral alternative that allowed UT to reach its objectives without resorting to a race-conscious alternative. The court held that while “percentage plans” may be a workable means of increasing minority enrollment, they are not workable alternatives in a constitutional sense. Grutter at 340.
Even though the Top Ten Percent Law increased overall minority enrollment, it was still at odds with the aims in Grutter because minority students remained clustered in certain programs, which limited the beneficial effects of a diverse population. Further, as a result of Top Ten Percent, many minority students admitted through the law have significantly lower scores than rejected minorities. The court found that although the law achieves the overall goal of increasing minority involvement, it is a blunt tool that is not a workable, race-neutral, constitutionally mandated substitute to UT’s current practice.
The last challenge raised by appellants was that UT already met its “critical mass” which made any other consideration of race unconstitutional. The court declined to accept any numerical limit on critical mass, noting that what constitutes a critical mass in one school may not be the same as in another school. The court preferred to define critical mass “by reference to the educational benefits that diversity is designed to produce.” Grutter at 330. Higgenbotham concluded by warning that because Top Ten Percent accounts for the vast majority of in-state admissions (and has resulted in one-fifth of the incoming freshman class being minorities), the current trajectory may erode the necessity of using race to achieve critical mass.
Judge King concurred in the analysis of Grutter, but declined to join the analysis of the Top Ten Percent Law, as no party challenged the law nor briefed the court on it.
Judge Garza concurred, arguing that although the court’s opinion was a faithful application of existing law, Grutter was a digression in the course of constitutional law. Grutter abandoned strict scrutiny for a regime which assumes, absent evidence to the contrary, that university administrators are acting in good faith in their admissions processes. The new process ensures that only universities using the most heavy-handed racial preferences, with conclusive data on such preferences will be subject to an exacting judicial examination.
Garza rejected of the efficacy of UT’s plan. Because Top Ten Percent accounted for over 80% of freshmen enrollees in 2008, only 58 black students and 158 Hispanic students were evaluated using the race-conscious system. At most, the use of race would only have accounted for 0.92% and 2.5% of the black and Hispanic students enrolled in the freshman class. Considering the numbers, Garza found the policy unnecessary, with no discernable impact on UT’s “educational benefits.”
Dissenting from rehearing en banc, Judge Jones claimed that the panel decision failed to uphold the standards of Grutter. She alleged the panel had watered down Grutter’s reliance on narrow tailoring and criticized the panel for being overly deferential to the rationale espoused by the university. Jones agreed with Garza that the panel should not have stopped at finding that UT’s policy was sufficiently similar to Grutter. The pertinent question was whether the policy was narrowly tailored in the context of Top Ten Percent, which already increased minority enrollment to 20 percent of the entering class. Jones disagreed with the panel’s approval of “gratuitous racial preferences,” when a race neutral policy was already adequate.