The University of Texas can consider race in undergraduate admissions to promote diversity, a federal appeals court ruled Tuesday.

Acting in a lawsuit that the U.S. Supreme Court had sent back last year, Judge Patrick Higginbotham wrote that considering race boosted the university’s efforts to assemble a diverse student body.

“To deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience,” Higginbotham said in the 2-1 opinion for the U.S. 5th Circuit Court of Appeals in New Orleans.

“Universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity,” Higginbotham wrote. “This interest is compelled by the reality that university education is more the shaping of lives than the filling of heads with facts – the classic assertion of the humanities.”


The dissenting judge, Emilio Garza, said the university “has not defined its diversity goal in any meaningful way,” making it “altogether impossible to determine whether its use of racial classifications is narrowly tailored.”

The original lawsuit was filed by Abigail Fisher, a white woman denied admission to the university in 2008. She contended the university had discriminated against her in violation of the 14th Amendment. When the 5th Circuit ruled against her, she appealed to the Supreme Court.

In June 2013, the high court ruled 7 to 1 that the university could use race-based policies if they were truly necessary to achieve diversity. It sent the case back to the 5th Circuit to determine whether the Austin campus still needed to give a preference to some minority applicants. The justices noted that Texas’ “top 10” law, which awards college admission to the top 10% of each high school’s graduates, has already led to an influx of Latino and black students.

Fisher’s lawyer told the Los Angeles Times his client would appeal the latest decision.


“We are disappointed,” Edward Blum said. “But this court was proven wrong by the Supreme Court in 2013 and we believe they will be proven wrong again.”

Blum argued – and said he will continue to argue – that the top 10 law achieves more diversity through “race-neutral means” than the university’s affirmative action policies. Fisher, who graduated from Louisiana State University in 2012, was in the top 11% of her high school class.

In the 2013 Supreme Court decision, Justice Anthony M. Kennedy wrote for the majority that appellate judges who review the Texas policy “must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

Kennedy wrote that, if a nonracial approach could bring about diversity, “then the university may not consider race.”


University of Texas at Austin President William C. Powers Jr. hailed the ruling. In a blog post on the university’s website, Powers wrote that the 5th Circuit decision “ensures that our campus, our state, and the entire nation will benefit from the exchange of ideas and thoughts that happens when students who are diverse in all regards come together in the classroom, at campus events, and in all aspects of campus life.”

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