AUSTIN Texas—Sixty-seven years after the first lawsuit over who gets to attend the University of Texas, a federal appeals court is again judging the school’s fairness and drafting a ruling that could change college affirmative action programs nationwide.
On one side, officials at the flagship campus in Austin insist they’ve developed a system that subtly includes race as one of seven factors for considering students who don’t earn automatic admission by graduating in the top 10 percent of their high school class. UT President Bill Powers insists that factoring in race is necessary to create a diverse learning environment.
Opposing the policy is Abigail Fisher, a White woman denied admission to UT, who says race shouldn’t be considered at all. Her attorney, Bert Rein, told the 5th Circuit Court of Appeals that the university could achieve sufficient diversity without considering race.
The three-judge panel heard arguments for a second time last week after the U.S. Supreme Court sent the case back for a closer look. Court observers believe conservative justices may be ready to reconsider past affirmative action decisions.
Justice Anthony Kennedy said in his ruling that a court should approve the use of race as a factor in admissions only after it concludes “that no workable race-neutral alternatives would produce the educational benefits of diversity.” Fisher’s attorneys proclaimed that the court wants further restrictions on race-based policies, while the university insisted that Kennedy had reaffirmed the need for affirmative action.
The 5th Circuit judges questioned both sides aggressively at the rehearing, asking what constitutes a necessary affirmative action policy and at what point would it no longer be necessary.
