Decision in Fisher en banc petition
Author: Joshua Thompson
The Fifth Circuit denied rehearing en banc today in Fisher v. University of Texas. This case involves the use of race in university admissions at the University of Texas at Austin. PLF has been been following this case with great interest, as it is the highest profile post–Grutter case challenging race-conscious university admissions. We filed a brief together with the American Civil Rights Institute, Center for Equal Opportunity, and the National Association of Scholars.
The court was split 9-7 on rehearing, and five of the judges joined in a stirring dissent. The dissenters took exception to the concept of diversity advocated by the University, a point I have made on this blog, writing:
"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."
Furthermore, agreeing with a point made in our amicus brief, the dissenters objected to the level of deference that the court granted the university:
"With due respect to the panel, Fisher fails to apply the avowed continuity in principle of the Court’s decisions. The panel’s 'serious, good faith consideration' standard distorts narrow tailoring into a rote exercise in judicial deference."
The dissent is filled with similar nuggets that make the problems with the Fisher opinion abundantly clear. And, while the denial of rehearing is disappointing, the case is now primed for review by the Supreme Court, where we can hopefully see some real change on the ability of public universities to treat students differently because of their skin color.
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