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Federal Appeals Court Rules University of Texas Can Continue Using Affirmative Action Policy

Supporters of affirmative action got a lift Tuesday from a federal appeals court, which put a stamp on the University of Texas’ long and winding road toward clarity on its affirmative action policy by declaring that the school can continue using race in its undergraduate admissions.

The three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans ruled 2–1 that barring the University of Texas from “limited use of race” would hurt diversity on campus.

“It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity,” said the panel’s majority opinion.

The university was initially sued in 2008 by Abigail Fisher, who is white, for being denied admission. In June 2013, the Supreme Court issued a 7-1 ruling sending the University of Texas affirmative action case back to the lower court, concluding that the lower court did not bring enough scrutiny to UT’s use of race.

At the time it was considered a narrow victory for Fisher.

While Justice Anthony Kennedy, writing for the majority, appeared to endorse the Supreme Court’s earlier decisions establishing that affirmative action is constitutional if it is used to foster a diverse student body, the court established that a race-conscious program could only be used if it was the only way to increase diversity.

The court majority felt that the U.S. Court of Appeals for the 5th Circuit hadn’t pushed UT enough to prove that its race-conscious admissions program was the only available way to foster diversity.

“The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal. On this point, the university receives no deference,” Kennedy wrote. “Strict scrutiny must not be strict in theory but feeble in fact.”

Fisher’s attorneys said they plan to appeal the lower court’s decision.

“It is disappointing that the judges hearing my case are not following the Supreme Court’s ruling last summer. I remain committed to continuing this lawsuit, even if it means we appeal to the Supreme Court once again,” Fisher said in a release.

But the Supreme Court has not been consistent on the matter, issuing a 6-2 ruling in April that Michigan could continue its ban on using race as a factor in college admissions.

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