Appeals Court's Decision Could Expand Affirmative Action, Warns Chief Judge



By David Paulin

A Federal appeals court has rejected a challenge made by two white students against a controversial affirmative action program at the University of Texas in Austin -- a decision that could justify the expansion of race-based admissions nationwide, according to a dissenting judge in the case. The case, Fisher v. the University of Texas in Austin, may head to the U.S. Supreme Court, say some observers.

On Friday, the New Orleans-based 5th U.S. Circuit Court of Appeals voted 9-7 not to rehear a three-judge panel's decision last January that upheld the university's consideration of race and ethnicity in its admission policies.

At issue was a complaint filed in 2008 by two white students, Abigail Fisher and Rachel Michalewicz. They contended the University of Texas in Austin had violated their constitutional rights by rejecting their applications because of their race. They'd wanted the full appeal's court to rehear their complaint.

Recently, The American Thinker focused on admissions policies at the University of Texas in an article, "Obama Wants Engineering Students and 'Diversity'."

In her powerful dissent, Chief Judge Edith H. Jones -- a Republican whom President Ronald Reagan appointed to the 5th Circuit in 1985 - criticized the court for failing to undertake a "strict scrutiny" of the university's affirmative action program; it instead gave "total deference to university administrators," she wrote.

Most significantly, Jones said the court's decision was potentially precedent-setting and could expand affirmative action program's in the nation's public universities. "This decision in effect gives a green light to all public higher education institutions in this circuit, and perhaps beyond, to administer racially conscious admissions programs without following the narrow tailoring that Grutter requires," she wrote, referring to the U.S. Supreme Court's 2003 decision in Grutter v. Bollinger.

In that landmark decision, the court ruled in favor of the "narrowly tailored" affirmative action policy of the University of Michigan Law School. The court nevertheless stressed that "race-conscious admissions policies must be limited in time," perhaps running their course in 25 years.

Jones, writing for five judges in her dissent, also raised questions about the constitutionality of the University of Texas's affirmative action policies and poked holes in those program's absurdities. Some of her comments are worth quoting at length.

Regarding the potentially absurd outcomes of the affirmative action program, she wrote:

"The pernicious impact of aspiring to or measuring "diversity" at the classroom level seems obvious upon reflection. Will the University accept this "goal" as carte blanche to add minorities until a "critical mass" chooses nuclear physics as a major? Will classroom diversity "suffer" in areas like applied math, kinesiology, chemistry, Farsi, or hundreds of other subjects if, by chance, few or no students of a certain race are enrolled? The panel opinion opens the door to effective quotas in undergraduate majors in which certain minority students are perceived to be "underrepresented." It offers no stopping point for racial preferences despite the logical absurdity of touting "diversity" as relevant to every subject taught at the University of Texas."

Regarding the problems with classifying people as members of groups, she wrote:

"Texas today is increasingly diverse in ways that transcend the crude White/Black/Hispanic calculus that is the measure of the University's race conscious admissions program. The state's Hispanic population is predominately Mexican-American, including not only families whose Texas roots stretch back for generations but also recent immigrants. Many other Texas Hispanics are from Central America, Latin America and Cuba. To call these groups a "community" is a misnomer; all will acknowledge that social and cultural differences among them are significant. Whether the University also misleadingly aggregates Indians, Pakistanis and Middle Easterners with East "Asians" is unclear, but Houston alone is home to hundreds of thousands of people from East Asia, South Asia and the Middle East. In Texas's major cities, dozens of other immigrant groups reside whose families have overcome oppression and intolerance of many kinds and whose children are often immensely talented. Privileging the admission of certain minorities in this true melting-pot environment seems inapt. But University administrators cherish the power to dispense admissions as they see fit, which might be reasonable except for two things: the Texas legislature has already spoken to diversity, and the U.S. Constitution abhors racial preferences. Because even University administrators can lose sight of the constitutional forest for the academic trees, it is the duty of the courts to scrutinize closely their "benign" use of race in admissions."

Edward Blum, director of the Project on Fair Representation, told the Austin American-Statesman on Wednesday that, "The plaintiffs are analyzing the powerful dissent from Judge Jones and the other four judges and will make a decision about the case soon." The group is helping to pay the plaintiffs' legal bills, noted the Statesman.

Patti Ohlendorf, University of Texas's vice president for legal affairs, told the Statesman that, "This denial of the plaintiffs' motion for rehearing -- as well as the previous favorable rulings and all of the effort we have put into defending this case to date -- put the university in a good position from which to respond if the plaintiffs petition the U.S. Supreme Court."

According to an article in the Chronicle of Higher Education, Fisher v. the University of Texas is indeed likely to head to the U.S. Supreme Court. Richard Kahlenberg wrote:

"Although the plaintiffs in the case, Fisher v. Texas, have not yet announced whether they will appeal, a source close to the case indicated to me that the U.S. Supreme Court is a likely next stop. If the Supreme Court accepts a petition to hear the case, the oral argument could take place in the spring, with a decision likely a year from now -- smack in the middle of the presidential campaign."

Originally published at The American Thinker.