Judge Higginbotham of the 5th Circuit Court of Appeals upheld the University of Texas's use of race as a factor in its undergraduate admissions process as constitutional in Fisher v. University of Texas at Austin, 631 F.3d 213 (2011), stating that the University of Texas followed the procedures set out by the United States Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003). The Supreme Court held in Grutter that the Consitution does not prohibit a school from considering race in the admissions process to further a compelling state interest of obtaining educational benefits that flow from having a diverse student body, as long as it is narrowly tailored to meet the objective.
The Fisher decision is a change in the way the 5th Circuit has viewed the use of race in the admissions process in the past. In the 1996 case of Hopwood v. Texas, 236 F.3d 256 (2000), the 5th Circuit held that the use of race in admissions was not a compelling state interest and therefore was unconstitutional. In 1997, the Texas legislature responded by passing a race-neutral plan, the Top Ten Percent Law, which guarantees high school graduates admission to the University of Texas if they are in the top ten percent of their graduating class. Along with this measure, the University of Texas implemented a more holistic approach to the admissions process by adding the Personal Achievement Index, which took into consideration a student's special honors, extra-curricular activities, community service, and other relevant factors. These two steps taken by the Texas legislature and the University of Texas were race-neutral measures aimed at increasing the minority student population.
The University of Texas, however, was still not achieving the desired diversity among its student body, and after the Grutter decision it began using race as part of a student's Personal Achievement Index. The appellants in Fisher argued that the University of Texas should not be able to use race as a factor in its admission process if it can obtain racial diversity through other race-neutral alternatives, such as the Top Ten Percent Law.
The 5th Circuit rejected this argument, relying on evidence provided by the University of Texas in 2002, five years after the implementation of the Top Ten Percent Law, that on a class by class basis minority students were still underrepresented in the university. The University of Texas provided information that of the 5,361 classes offered, 79% had zero or one African-American student, and 30% percent of classes had zero or one Hispanic student. This showed the court that, despite the race-neutral alternatives in place, the University of Texas still had a need to consider race in its admission process to obtain the desired diversity. The court, however, warned it might not always be this way and that the ever increasing minority population in the university resulting from race-neutral alternatives might one day end the need for race as a consideration in the admission process.
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