Today the 5th Circuit, on remand from the Supreme Court, upheld UT Austin’s Affirmative Action policy. Here is the 69-page opinion. In short, the majority was persuaded by the evidence adduced by UT about the validity of its affirmative action plan. Judge Garza dissented.
Here is the introduction:
Abigail Fisher brought this action against the University of Texas at Austin,1 alleging that the University’s race-conscious admissions program violated the Fourteenth Amendment. The district court granted summary judgment to UT Austin and we affirmed. The Supreme Court vacated and remanded, holding that this Court and the district court reviewed UT Austin’s means to the end of a diverse student body with undue deference; that we must give a more exacting scrutiny to UT Austin’s efforts to achieve diversity. With the benefit of additional briefing, oral argument, and the ordered exacting scrutiny, we affirm the district court’s grant of summary judgment.
Here is the conclusion of the majority:
In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race, this because the Plan produces sufficient numbers of minorities for critical mass. This contention views minorities as a group, abjuring the focus upon individuals— each person’s unique potential. Race is relevant to minority and non-minority, notably when candidates have flourished as a minority in their school— whether they are white or black. Grutter reaffirmed that “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race still matters.” We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter. The need for such skill sets to complement the draws from majority-white and majority-minority schools flows directly from an understanding of what the Court has made plain diversity is not. To conclude otherwise is to narrow its focus to a tally of skin colors produced in defiance of Justice Kennedy’s opinion for the Court which eschewed the narrow metric of numbers and turned the focus upon individuals. This powerful charge does not deny the relevance of race. We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school—not a proffer of societal discrimination in justification for use of race, but a search for students with a range of skills, experiences, and performances—one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from whence they came.
It is settled that instruments of state may pursue facially neutral policies calculated to promote equality of opportunity among students to whom the public schools of Texas assign quite different starting places in the annual race for seats in its flagship university. It is equally settled 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. Yet the backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass. We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court. To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command—due only a courtesy salute in passing.
Here is the beginning of Judge Garza’s dissent:
In vacating our previous opinion, Fisher v. Univ. of Tex. at Austin, 631 F.3d 213 (5th Cir. 2011), the Supreme Court clarified the strict scrutiny standard as it applies to cases involving racial classifications in higher education admissions: Now, reviewing courts cannot defer to a state actor’s argument that its consideration of race is narrowly tailored to achieve its diversity goals. Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420 (2013). Although the University has articulated its diversity goal as a “critical mass,” surprisingly, it has failed to define this term in any objective manner. Accordingly, it is impossible to determine whether the University’s use of racial classifications in its admissions process is narrowly tailored to its stated goal— essentially, its ends remain unknown. By holding that the University’s use of racial classifications is narrowly tailored, the majority continues to defer impermissibly to the University’s claims. This deference is squarely at odds with the central lesson of Fisher. A proper strict scrutiny analysis, affording the University “no deference” on its narrow tailoring claims, compels the conclusion that the University’s race- conscious admissions process does not survive strict scrutiny.
And the conclusion:
The material facts of this case have remained unchanged since the district court’s grant of summary judgment, but the governing law has changed markedly. Fisher established that strict scrutiny in the higher education affirmative action setting is no different than strict scrutiny in other equal protection contexts—the state actor receives no deference in proving that its chosen race-conscious means are narrowly tailored to its ends. The majority fails to give Fisher its proper weight. Today’s opinion sidesteps the new strict scrutiny standard and continues to defer to the University’s claims that its use of racial classifications is narrowly tailored to its diversity goal. Because theUniversity has not defined its diversity goal in any meaningful way—instead, reflexively reciting the term “critical mass”—it is altogether impossible to determine whether its use of racial classifications is narrowly tailored. This is not to say, however, that it is impossible for a public university to define its diversity ends adequately for a court to verify narrow tailoring with the requisite exacting scrutiny. After all, “[s]trict scrutiny must not be strict in theory but fatal in fact.” Fisher, 133 S. Ct. at 2421 (internal quotations omitted). It may even be possible for a university to do so while seeking a “critical mass.” What matters now, after Fisher, is that a state actor’s diversity goals must be sufficiently clear and definite such that a reviewing court can assess, without deference, whether its particular use of racial classifications is necessary and narrowly tailored to those goals. On this record, the University has not “offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” Fisher, 133 S. Ct. at 2421. Accordingly, I would reverse and render judgment for Fisher.
This just may go back to the Supreme Court, one more time.