Wednesday, July 16, 2014
In a Holistic Review of Holistic Admissions, Fifth Circuit Upholds University of Texas Admission Plan
For those who missed it, the 5th Circuit issued its opinion late yesterday in the remand from the Supreme Court in Fisher v. Texas. The Court of Appeals, by a 2-1 vote, upheld the admissions plan. The opinion is here. The University of Texas victory was unexpected by many close to the case. I personally thought the panel would still be predisposed toward the Texas plan, but there was a strong chance it would remand to the district court to further develop the facts to help bolster the narrow tailoring case. So my surprise was the Court of Appeals' willingness to defend the plan as narrowly tailored on the facts already before.
On my initial read of the opinion, I was most struck by the court's framing of the admissions plan. It analyzed the admissions plan in full context. This is something it had done in its previously decision, but it went even further this time and framed the facts in a way that offered a more definitive defense of the notion that the plan was narrowly tailored. First, it accounted for where diversity had been for several years prior to the current admissions plan to show that the Top Ten Percent Plan alone did not work nearly as well as race neutral advocates would have us believe. Second, it was insistent on analyzing the use of race not in the narrow context of the holistic admissions review process in which Texas used it, but in the broader admissions context. This allowed it to show how race has the potential to be a factor in only a small percentage of overall admissions program. Top Ten Percent Plan dominates the admissions process and the holistic review operates in the few remaining seats up for grabs. In that respect, the consideration of race is much narrower in Texas than it was in Grutter v. Bollinger.Most important, however, was the court's recognition that achieving diversity without considering race would likely mean the end of individualized holistic admissions at Texas. Eliminating holistic review would disadvantage a substantial number of both minority and non-minority students who are among the highest performing students in the state, but can only get into Texas through the holistic review. An expanded form of the Top Ten Percent Plan would exclude. An expanded Top Ten Percent Plan would also harm diversity, if by diversity one means more than just race, which the Supreme Court is clear that diversity must. If the University is committed to full experiential, ideological, and racial diversity, it cannot be achieved through a completely race neutral Top Ten Percent style plan. A university need choose between robust diversity and simple racial diversity. In other words, the consideration of race at Texas is narrowly tailored because the University cannot achieve both racial and other diversity without it. Maybe, I like this opinion so much because it engages in the exact sort of functional analysis that I chiding the Supreme Court for ignoring in Fisher v. Texas and the Irrelevance of Function in Race Cases.