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Last year, the Supreme Court heard the original appeal and decided it was OK for public schools to consider race under certain circumstances, but sent the case to the U.S. Court of Appeals for the Fifth Circuit for more in-depth scrutiny to make sure the school’s policy met the justices' requirements.
Even after a second look, the majority of the 5th Circuit found the district court’s original 2011 ruling to be fair. The lone dissenter in the case, Judge Emilio M. Garza, felt the university had failed to show its use of affirmative action was narrow enough to meet the standards set forth by the supreme court.
On behalf of the two-person majority, Judge Patrick E. Higginbotham writes, “We are satisfied that UT-Austin has demonstrated that race-conscious holistic review is necessary to make the Top Ten Percent Plan workable by patching the holes that a mechanical admissions program leaves in its ability to achieve the rich diversity that contributes to its academic mission.”
In Texas, the "Top Ten Percent Plan" awards students in the top ten percent of their high school class with guaranteed admission to the University of Texas flagship school or any other state university.
The case, Fisher vs. University of Texas at Austin, stems from a lawsuit brought about by Abigail Noel Fisher, a white applicant who was denied admission and consequently felt she was being discriminated against as a result of the affirmative action policy.
Fisher and supporters are not backing down and plan to appeal again.
On the flip side of their present actions in this case, the Supreme Court has demonstrated it can also rule against affirmative action, as it did this spring when the court backed a Michigan constitutional amendment banning the use of affirmative action at public universities. Another appeal of the Fisher case could bring it right back to the Supreme Court for a final say on using affirmative action.
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