Federal Judges Hear Arguments in Fisher Case — Again

The University of Texas at Austin’s lawyers and attorneys for Abigail Fisher, who is challenging the school’s consideration of race in its admissions decisions, again found themselves arguing before the U.S. 5th Circuit Court of Appeals on Wednesday.

The U.S. Supreme Court sent the case back to the lower court in June, instructing them to apply strict scrutiny — a very high level of review — to the university’s argument for considering the race of some applicants.

The overwhelming majority of the university’s students are admitted through the state’s automatic admissions law, which is based entirely on class rank. But applicants who are not admitted because of their high school ranking are subjected to a holistic review, part of which allows the consideration of an applicant's race.

Fisher, a white woman, was denied admission in 2008 after undergoing such a review. She subsequently sued the university, and has pursued the claim after graduating from Louisiana State University and securing a job in Texas.

“I’m going to fight for other people’s rights,” she told reporters on Wednesday, noting that she would receive little personal benefit from a victory. “I would expect other people to fight for my rights, so I’m fighting for everyone’s rights.”

According to the Supreme Court’s ruling, when the federal court judges previously affirmed UT's practice, they were too inclined to take the university representatives at their word when they said the consideration of race was a necessary component of the review process that helped the institution meet its diversity goals.

Exactly what those goals are has been a point of dispute. The university has argued that it is striving for — and has not yet attained — a “critical mass” of diversity. But Judge Emilio Garza said that the definition of “critical mass” that he has heard has been “tautological, circular or subjective.” He observed that the application of strict scrutiny creates an interesting problem, since under the law, the goals for diversity cannot be defined by a specific number.

Arguing on behalf of the university, attorney Gregory Garre, of Latham and Watkins LLP, said that judges could reach the same conclusion they did previously by submitting the record already provided to them to a more thorough review. “Our view is that the record is sufficient,” he said, after citing increasing rates of minority enrollment since the current practice was adopted.

Fisher’s lawyer, Bert Rein, argued that there was no evidence to suggest that the university had exhausted alternative options before turning to race to help improve campus diversity. He also contended that the current admissions system had done little to improve diversity in UT’s classrooms.

“When you are achieving minimal results, the obvious conclusion is there are alternative ways to do it that won’t create this kind of labeling,” Rein later explained to reporters.

Following the oral arguments, UT-Austin President Bill Powers told reporters, “To suggest that we have not tried race-neutral admissions policies ignores the university’s history.” He said that before allowing the consideration of race, UT-Austin saw minority enrollment stagnate and drop.

If the court rules against the university’s current policy, Powers said, it would be “a setback, not just at the University of Texas, but at universities across the country.”

During the oral arguments, Josh Civin of the NAACP Legal Defense and Educational Fund, who is serving as lead counsel for the UT Black Students Association, requested that the federal judges send the case back to a trial court so that further evidence could be submitted. He said additional evidence would “dispel any doubts and clarify some of the questions.”

Powers said he did not believe it was necessary to remand the case. University representatives also indicated they did not know when the appeals court would issue a decision.

Edward Blum, the director of the Project on Fair Representation, which has represented Fisher throughout her fight, told reporters that until a conclusion was reached that banned the use of race in admissions decisions, “thousands of Texas high school graduates will be unfairly denied admission to UT simply because they are the wrong race.”

Following his remarks, outside the judicial building, a group of minority UT students, who were on hand to express support for the university’s current policy, said that diversity on campus was lacking. As an example of the work the university still must accomplish, they pointed to a recent affirmative action-themed bake sale held by a conservative student group on campus.

In an interesting twist, lawyer Allan Van Fleet — who represents embattled UT Regent Wallace Hall, who is the subject of an impeachment investigation related to accusations that he is conducting a “witch hunt” to oust Powers — was in attendance, supporting the university as a representative for the family of Heman Sweatt, the first African-American student at the University of Texas School of Law.

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