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UT Affirmative Action Case Back Before 5th Cir.

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By Brett Snider, Esq. on November 14, 2013 11:32 AM

After SCOTUS punted on affirmative action in Fisher v. Texas, the case over UT's admissions decisions was back in front of the Fifth Circuit.

Texas Public Radio reports that the Fifth Circuit heard arguments Wednesday over questions left unanswered by the U.S. Supreme Court, like whether UT's admissions policy validly used race as a factor.

At this point Abigail Fisher has already received her undergraduate degree from Louisiana State University (LSU), so is this a winning fight?

What Did SCOTUS Say Again?

In June, SCOTUS ruled on Fisher... but not necessarily on the really juicy merits of the case. The High Court found that both the Fifth Circuit and the district court had erred in:

  1. Deferring to UT on their analysis of both the compelling interest and narrowly tailored portions of the strict scrutiny analysis, and
  2. Placing the burden on Fisher to overcome that deference.

That isn't how strict scrutiny operates, and with the exception of Justice Ginsberg, the entire Court wanted the case remanded to the Fifth Circuit for the proper analysis.

On the sidelines, Justices Scalia and Thomas penned dozens of pages in concurrence arguing for the hypothetical overturning of Grutter v. Bollinger, just in case we forgot where they stand on the affirmative action issue.

Welcome Back Fisher

As a refresher for Fisher's return to the Fifth Circuit, the case involves Fisher's denial of admission to UT's undergraduate program, which allows guaranteed admission to the top 10 percent of each graduating high school class in Texas. For the remaining applicants, race is a factor that UT considers.

After the SCOTUS decision, a "Campus Colors" panel at the ABA's Annual Meeting discussed Fisher, with Damon Hewitt of the NAACP Legal Defense Fund expressing surprise that the case was even considered in light of Grutter. Civil rights attorney Bill Lann Lee agreed that based on the evidence presented in Fisher, UT's system seemed less suspect than the one upheld in Grutter.

With the mounting evidence supporting using race as a "plus" in holistic admissions, it's unclear what the Fifth Circuit will substantively change in its ruling. Unless drastically new arguments are made in the coming days, it seems likely that the Fifth Circuit will find that the UT plan holds up to strict scrutiny.

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