Today, the Fifth Circuit Court of Appeals announced that the full court will not rehear an appeal brought by Abigail Fisher challenging the University of Texas at Austin’s admissions policy that uses racial and ethnic preferences to achieve “diversity” on campus.
Students who graduate in the top 10 percent of Texas high schools are automatically admitted to all state-funded universities. Applicants for the remaining spots (such as Abigail Fisher) are subject to a “holistic review” that includes preferences for underrepresented minorities. When Fisher was denied admission, she sued the University of Texas at Austin for discriminating against her based on race.
Fisher’s case has already made one trip to the Supreme Court, and it may be heading there once again. In 2013, the Supreme Court held that the lower courts were too deferential to the judgment of school officials upon reviewing Texas’s admissions plan. The Court previously upheld racial preferences in college admissions to the extent that they are “narrowly tailored to further compelling governmental interests.” In Fisher, the Court noted that schools must prove their means of using race meets that standard and sent Fisher’s case back to the lower court for a more searching examination.
In a 2-1 decision, the Fifth Circuit panel upheld the university’s plan once again over the protest of Judge Emilio Garza, who pointed out that the university’s “bare submission” of proof that its admissions plan passes strict scrutiny “begs for the deference that is irreconcilable with ‘meaningful’ judicial review.”
Fisher asked the full Fifth Circuit to rehear the case. In a brief order, the court announced that the judges voted 10 to 5 not to rehear the case. Judge Garza wrote a short dissent joined by four others, stating that the panel decision “fails to conduct the strict scrutiny analysis [Fisher] requires, thus returning to the deferential models.”
This may sound like a highly technical case, but what this boils down to is whether or not the government should be in the business of sorting people by such innate characteristics as race and ethnicity. As I explained before:
The University of Texas is, after all, a state-run school and its use of racial preferences remains discriminatory. Even though they may be “cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping,” Justice Clarence Thomas wrote in his concurring opinion in Fisher v. University of Texas at Austin. Indeed, racial preferences are nothing more than government-sanctioned discrimination, and as Chief Justice John Roberts said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
But Abigail Fisher will keep fighting. In a statement last summer she said, “I remain committed to continuing this lawsuit event if it means we appeal to the Supreme Court once again.” Let’s hope the Supreme Court grants review in her case again. To be sure, the justices don’t take kindly to lower courts ignoring their rulings (just look at the Ninth Circuit’s track record in habeas cases), and as Judge Garza said in his dissent, the Fifth Circuit’s decision is “squarely at odds with the central lesson of Fisher.”
This piece originally appeared in The Daily Signal