Legal Roller-coaster of Bill Powers and UT
“We are very pleased with the Court’s ruling recognizing the constitutionality of the University’s admissions policy under the Supreme Court’s recent guidance,” Bill Powers, president of the University of Texas at Austin, declared in a statement yesterday after the Fifth U.S. Circuit Court of Appeals upheld UT’s racial-preference policy.
He also has reason to be nervous. The case will likely end up back at the high court, where there’s a very strong chance yesterday’s ruling will be reversed.
The legal dispute over preferences at UT goes back more than two decades, to a lawsuit filed in 1992. In 1996 the Fifth Circuit decided that case, Hopwood v. Texas, in favor of the plaintiffs, and the university stopped using race as a factor in admissions. That changed after the U.S. Supreme Court held in Grutter v. Bollinger (2003) that race preferences were permissible in order to “obtain the educational benefits of student body diversity.”
Abigail Fisher filed suit in 2008 challenging the revived preferences. A trial judge ruled summarily in the university’s favor, and in 2011 a three-judge panel of the Fifth Circuit affirmed that judgment. Fisher appealed to the Supreme Court, whichlast year held by a 7-1 vote that the judges below had failed to subject the university’s policies to the proper constitutional test of “strict scrutiny.” Yesterday the same circuit panel, by the same 2-1 vote, found that the UT policies passed muster.
The central point of dispute in this most recent Fisher v. University of Texas ruling is the university’s stated goal, namely attaining a “critical mass” of minority students. What exactly does that mean? “Achieving the critical mass requisite to diversity goes astray when it drifts to numerical metrics,” writes Judge Patrick Higginbotham for the court. “UT Austin urges that it has made clear that looking to numbers, while relevant, has not been its measure of success; and that its goals are not captured by population ratios.”