Affirmative Action

Fifth Circuit Decision a Win For Affirmative Action, But Will It Survive?

Opponents of affirmative action were unfazed by the ruling.


The Fifth Circuit Court of Appeals upheld the University of Texas at Austin's race-based admissions preferences, ruling that the policy was necessary to create a diverse campus and thus constitutional.

UT's affirmative action policy has already lost at the Supreme Court, which determined that the Fifth Circuit did not apply strict scrutiny in its evaluation of race-based admissions. Affirmative action is only permissible as a last resort—if a university has no other way to achieve a racially diverse campus—the Court has said.

The justices then sent the case back to the lower court for another look. A three-judge panel of the Fifth Circuit ruled Tuesday that UT's policy does indeed survive a strict scrutiny challenge.

The Washington Post's Ilya Somin agreed with dissenting Judge Emilio Garza, who wrote that the university had failed to properly explain why affirmative action was necessary and what it was trying to accomplish by using such a policy, thus failing the test outlined by the Supreme Court. Somin writes:

The University's failure to define its objectives with greater precision may be due to the fact that if achieving a "critical mass" of different groups for educational purposes were really the goal, it is hard to explain why it has racial preferences for African-Americans and Hispanics, but not for numerous other groups who can also contribute to diversity, but whose pre-preference numbers in the student body are much smaller. If applied consistently, the diversity rationale could justify preferences for a wide range of groups, including even some white males. Because it is limited to so few groups, Texas' program looks more like an effort to promote compensatory justice for groups that have suffered a history of discrimination in the state than to promote diversity across the board.

Opponents of affirmative action were unfazed by the ruling. Jennifer Gratz, who sued the University of Michigan over its racial preferences and has led ballot drives to ban affirmative action in several states, said that the decision may actually set up a more proper Supreme Court showdown over the legality of such policies. She writes:

This outcome is not surprising in the least. The Fifth Circuit ruled decidedly in favor of race-based policies before; it is not shocking to see them do so again. This decision demonstrates the fundamental murkiness of the Grutter v. Bollinger allowance for "nuanced" uses of race in admissions.

In the Grutter dissent, Justice Ginsberg rightly pointed out that the Court was allowing racial preferences to continue with "winks, nods, and disguises." This has led universities to hide race-based decisions behind a supposedly holistic review process. In reality they are the same discriminatory policies with even less transparency. Citizens deserve to have clarity when it comes to whether or not universities are holding their skin color against them.

Grutter has only muddied the water on these unsustainable policies, and, ironically, today's Fisher decision leaves the door open for the Supreme Court to issue the broad ruling many pundits expected from its first hearing.

States are still free to prohibit affirmative action on their own. Several states have already done so, and the Supreme Court has already ruled these efforts constitutional.