Fisher v. UT-Austin: Discrimination Run Amok?

The issue of affirmative action may soon find itself again before the Supreme Court of the United States.

Court watchers will remember that it was just recently (a little more than a year ago) that the Court took up the issue, in the case of Fisher v. University of Texas at Austin. Despite what some may have been looking for in a broad, sweeping denunciation or approval of using race-based factors in college admissions, the Court decided to remand, or send the issue back down to the circuit court so that the case could be “considered and judged under a correct analysis.”

And the deliberations of the United States Court of Appeals for the Fifth Circuit have just come to an end.

In a lengthy, 41-page opinion, the majority composed of Patrick Higginbotham and Carolyn King, rendered an interesting (and for the non-lawyerly classes, mightily tiresome) reading.

At its essence, the 2-judge majority rejected the challenge by Fisher, upholding the University’s admissions regimen. The Court found that “to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience” at the flagship institution.

The Fifth Circuit concluded that “universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity. This interest is compelled by the reality that university education is more the shaping of lives than the filling of heads with facts – the classic assertion of the humanities.”

Indeed, the majority reaffirmed Justice Kennedy’s sentiments in the Fisher case: “Attainment of a diverse student body … serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation.”

The trend (since the famous Grutter decision) in cases that have made their way through the federal pipeline up to the Supreme Court is that a court’s judicial calculus should be largely deferential to the university’s expertise in trying to enrich the collegiate environment.

This type of respect for the university may be well-justified; after all, no judge is trained to evaluate the efficacy of an admissions program, but an appeal to the entire Fifth Circuit en banc, or to the Supreme Court itself will shed light on whether the Fifth Circuit arrived at the right conclusion.

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