IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 17, 2011
No. 09-50822
Lyle W. Cayce
Clerk
ABIGAIL NOEL FISHER; RACHEL MULTER MICHALEWICZ,
Plaintiffs – Appellants
v.
UNIVERSITY OF TEXAS AT AUSTIN; DAVID B. PRYOR, Executive Vice
Chancellor for Academic Affairs in His Official Capacity; BARRY D.
BURGDORF, Vice Chancellor and General Counsel in His Official Capacity;
WILLIAM POWERS, JR., President of the University of Texas at Austin in
His Official Capacity; BOARD OF REGENTS OF THE UNIVERSITY OF
TEXAS SYSTEM; R. STEVEN HICKS, as Member of the Board of Regents in
His Official Capacity; WILLIAM EUGENE POWELL, as Member of the
Board of Regents in His Official Capacity; JAMES R. HUFFINES, as Member
of the Board of Regents in His Official Capacity; JANIECE LONGORIA, as
Member of the Board of Regents in Her Official Capacity; COLLEEN
MCHUGH, as Chair of the Board of Regents in Her Official Capacity;
ROBERT L. STILLWELL, as Member of the Board of Regents in His Official
Capacity; JAMES D. DANNENBAUM, as Member of the Board of Regents in
His Official Capacity; PAUL FOSTER, as Member of the Board of Regents in
His Official Capacity; PRINTICE L. GARY, as Member of the Board of
Regents in His Official Capacity; KEDRA ISHOP, Vice Provost and Director
of Undergraduate Admissions in Her Official Capacity; FRANCISCO G.
CIGARROA, M.D., Interim Chancellor of the University of Texas System in
His Official Capacity,
Defendants – Appellees
Appeal from the United States District Court
for the Western District of Texas
No. 09-50822
ON PETITION FOR REHEARING EN BANC
(Opinion 1/18/11, 5 Cir., 631 F.3d 213)
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:
The court having been polled at the request of one of the members of the
court and a majority of the judges who are in regular active service and not
disqualified not having voted in favor (FED. R. APP. P. and 5TH CIR. R. 35), the
Petition for Rehearing En Banc is DENIED.
Voting for en banc rehearing were: Chief Judge Edith H. Jones, Judge E.
Grady Jolly, Judge Jerry E. Smith, Judge Edith B. Clement, Judge Priscilla R.
Owen, Judge Jennifer Walker Elrod, and Judge Catharina Haynes.
Voting against en banc rehearing were: Judge Carolyn Dineen King, Judge
W. Eugene Davis, Judge Emilio M. Garza, Judge Fortunato P. Benavides, Judge
Carl E. Stewart, Judge James L. Dennis, Judge Edward C. Prado, Judge Leslie
H. Southwick, and Judge James E. Graves.*
Upon the filing of this order, the clerk shall issue the mandate forthwith.
See FED. R. APP. P. 41(b).
ENTERED FOR THE COURT:
______________________________
Patrick E. Higginbotham
United States Circuit Judge
*
In 2009, the court decided to begin identifying the judges voting for or against en banc
rehearing where a poll is taken and the request for en banc rehearing is denied.
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No. 09-50822
EDITH H. JONES, Chief Judge, with whom E. GRADY JOLLY, JERRY E.
SMITH, EDITH B. CLEMENT and PRISCILLA R. OWEN, Circuit Judges, join,
dissenting:
By a narrow margin, this court has voted not to rehear this case en banc.
I respectfully dissent. This panel decision essentially abdicates judicial review
of a race-conscious admissions program for undergraduate University of Texas
students that favors two groups, African-Americans and Hispanics, in one of the
most ethnically diverse states in the United States. The panel purports to apply
the Supreme Court’s decision in Grutter v. Bollinger,1 which authorized some
race conscious admissions to Michigan Law School to foster educational
“diversity.” The panel’s opinion, however, extends Grutter in three ways. First,
it adopts a new “serious good faith consideration” standard of review, watering
down Grutter’s reliance on strict narrow tailoring. Second, it authorizes the
University’s race-conscious admissions program although a race-neutral state
law (the Top Ten Percent Law) had already fostered increased campus racial
diversity. Finally, the panel appears to countenance an unachievable and
unrealistic goal of racial diversity at the classroom level to support the
University’s race-conscious policy. This decision in effect gives a green light to
all public higher education institutions in this circuit, and perhaps beyond, to
administer racially conscious admissions programs without following the narrow
tailoring that Grutter requires.
Texas today is increasingly diverse in ways that transcend the crude
White/Black/Hispanic calculus that is the measure of the University’s race
conscious admissions program. The state’s Hispanic population is predominately
Mexican-American, including not only families whose Texas roots stretch back
for generations but also recent immigrants. Many other Texas Hispanics are
from Central America, Latin America and Cuba. To call these groups a
1
539 U.S. 306, 123 S. Ct. 2325 (2003).
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No. 09-50822
“community” is a misnomer; all will acknowledge that social and cultural
differences among them are significant. Whether the University also
misleadingly aggregates Indians, Pakistanis and Middle Easterners with East
“Asians” is unclear, but Houston alone is home to hundreds of thousands of
people from East Asia, South Asia and the Middle East. In Texas’s major cities,
dozens of other immigrant groups reside whose families have overcome
oppression and intolerance of many kinds and whose children are often
immensely talented. Privileging the admission of certain minorities in this true
melting-pot environment seems inapt. But University administrators cherish
the power to dispense admissions as they see fit, which might be reasonable
except for two things: the Texas legislature has already spoken to diversity, and
the U.S. Constitution abhors racial preferences. Because even University
administrators can lose sight of the constitutional forest for the academic trees,
it is the duty of the courts to scrutinize closely their “benign” use of race in
admissions.
1. That Fisher deviates from Grutter’s legal analysis is evident from a
brief comparison of the cases. In Grutter, the Court approved the Michigan Law
School’s holistic, individual consideration of applications that included a
student’s race as a factor in addition to many other non-academic factors when
the school pursued the “compelling interest” of having a “diverse” student body.
The result of the policy was consequential, a tripling of the number of African-
American and Hispanic law students, from 4% to 14.5% of the student body.
Grutter, 539 U.S. at 320, 123 S. Ct. at 2334. Unlike the Fisher panel, however,
the Supreme Court mentioned deference to university administrators’ decisions
at only two points in its opinion. Grutter expressly followed the narrow tailoring
inquiry used in other cases assessing race-conscious governmental policies.
First, recognizing the unique constitutional interests of the academy, the
Court “presume[d]” the good faith of the university within its discussion leading
to the “conclusion that the Law School has a compelling interest in a diverse
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student body . . . .” Grutter, 539 U.S. at 328-29, 123 S. Ct. at 2338-39. But even
for this purpose, the Court awarded only “a degree of deference” to
administrators’ academic decisions. Id. at 2339.
Second, the Court stated that narrow tailoring “require[s] serious, good
faith consideration of workable race-neutral alternatives that will achieve the
diversity the university seeks.” 539 U.S. at 339, 123 S. Ct. at 2345. This
discussion of university decisionmaking was meant to challenge the university,
not to bless whatever rationale it advances for racially preferential admissions.
Grutter emphasized, by repeated references to prior decisions concerning racial
preferences, that the government “is still ‘constrained in how it may pursue [a
compelling interest]: [T]he means chosen to accomplish the . . . asserted purpose
must be specifically and narrowly framed to accomplish that purpose.’ ” 539 U.S.
at 333, 123 S. Ct. at 2341 (citing Shaw v. Hunt, 517 U.S. 899, 908, 116 S. Ct.
1894 (1996), a redistricting decision). Further, it held, narrow tailoring “must
be calibrated to fit the distinct issues raised” by promoting racial diversity in
higher education. Grutter, 539 U.S. at 334, 123 S. Ct. 2341. Far from diluting
narrow tailoring in order to defer to university administrators, the Grutter Court
cited Adarand2—an employment case—to demonstrate consistency with prior
equal protection jurisprudence. The Court explained in detail how the racial
“plus factor” in Grutter still required minority applicants to compete with
nonminority applicants; why this program was not an impermissible quota
system; how nonminority candidates with lower academic scores were often
admitted over minority candidates; why race-neutral alternative admission
programs would not serve the university’s particular interests; why nonminority
students were not “unduly burdened” by the racial factor in the admissions
process; and finally, why an end point or periodic review of the process was
necessary to comply with the Constitution.
2
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097 (1995).
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No. 09-50822
Certainly, Grutter authorizes university officials, in certain circumstances,
to pursue campus “diversity” using race as one factor in their decisionmaking.
But on its face, Grutter does not countenance “deference” to the university
throughout the constitutional analysis, nor does it divorce the Court from the
many holdings that have applied conventional strict scrutiny analysis to all
racial classifications.
The Fisher panel opinion, although occasionally difficult to understand,
supplants strict scrutiny with total deference to University administrators.3
First, the opinion’s Standard of Review section mentions strict scrutiny in the
first sentence, but goes on for several paragraphs counseling deference to
universities. The panel, contrary to the Supreme Court’s requirement that every
race-conscious governmental decision bears a heavy burden of proof, issues this
blanket approval:
Grutter teaches that so long as a university considers race in a
holistic and individualized manner, and not as part of a quota or
fixed-point system, courts must afford a measure of deference to the
university’s good faith determination that certain race-conscious
measures are necessary to achieve the educational benefits of
diversity, including attaining critical mass in minority enrollment.
Fisher, 631 F.3d 213, 233 (5th Cir. 2011). This statement apparently conflates
the University’s compelling interest with narrow tailoring, or at least it misleads
as to the importance of each prong of strict scrutiny analysis.
Second, immediately following this summary, the panel seeks support
from the Parents Involved case, which followed Grutter and reiterated the
Supreme Court’s disapproval of “benign” race-based student assignment
decisions in public schools. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist.
No. 1, 551 U.S. 701, 127 S. Ct. 2738 (2007). But Fisher misquotes Parents
Involved in saying that “[Parents Involved] invoked Grutter’s ‘serious, good faith
3
I do not disagree with the panel’s conclusion that following Grutter, we may presume
a university’s good faith in the decision that it has a compelling interest in achieving racial and
other student diversity. But that is as about as far as deference should go.
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No. 09-50822
consideration’ standard, rather than the strong-basis-in-evidence standard that
Appellants would have us apply [to the narrow tailoring inquiry].” Fisher, 631
F.3d at 234 (emphasis added). There is no support in Parents Involved for this
artificial dichotomy, nor for Fisher’s later assertion that Parents Involved might
have turned out differently — i.e., racially discriminatory assignments might
have been allowed — had there been no “other, more narrowly tailored means”
to serve the school districts’ purposes. Id. On the contrary, Parents Involved
juxtaposed the narrow tailoring inquiries of Grutter and City of Richmond v. J.A.
Croson Co., 488 U.S. 469, 519, 109 S. Ct. 706 (1989)(Kennedy, J., concurring), an
employment decision. Parents Involved, 551 U.S. at 735, 127 S. Ct. at 2760.
This parallelism illustrated that Grutter’s “serious, good faith consideration”
statement is not a new standard at all, but rather a way to express the classic
requirement that narrow tailoring be more than a rote exercise in dismissing
race-neutral alternatives.4 With due respect to the panel, Fisher fails to apply
the avowed continuity in principle of the Court’s decisions. The panel’s “serious,
good faith consideration” standard distorts narrow tailoring into a rote exercise
in judicial deference.
Third, the panel disturbingly implies that only procedural, not
substantive, consideration of a university’s race-conscious admissions program
is necessary. Fisher, 631 F.3d at 231 (“Rather than second-guess the merits of
the University’s decision, . . . we instead scrutinize the University’s
decisionmaking process . . . .”). Grutter nowhere countenances this radical
dilution of the narrow tailoring standard.
4
The Fisher panel is simply wrong in attempting to divorce Grutter’s standards from
those of employment discrimination cases. Fisher, 631 F.3d at 233 (holding that employment
cases “have little purchase in this challenge to university admissions.”). Both Grutter and
Parents Involved routinely invoke those cases.
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No. 09-50822
Finally, the panel reinforces its overbroad approval or, more precisely,
judicial abdication, in its Conclusion, which mentions a “serious, good faith
consideration” standard twice and opines that the University’s plan “is more a
process than a fixed structure that we review.” Id. at 246-47.
2. The effect of the panel’s wholesale deference becomes clear when one
considers the important factual distinction between this case and Grutter. In
Fisher, the plaintiffs challenged a post-Grutter University plan whereby 19% of
the entering freshman class were subject to a race-conscious admissions process
to increase diversity.5 As Judge Garza’s concurrence demonstrates, the number
of students actually admitted under this racial preference policy is unclear, but
it amounted to no more than a couple hundred out of more than six thousand
new students. 631 F.3d at 260-61 (Garza, J., specially concurring).
The panel opinion asserts that the University’s admission process is
constitutionally acceptable because it is modeled closely after Grutter. Yet the
difference is obvious. The Texas legislature statutorily mandated increased
diversity in admissions by means of the Top Ten Percent Law. Under that race-
neutral law, covering 80% of University admissions, the top ten percent of
graduates from every Texas high school were automatically admitted, and many
African-American and Hispanic students matriculated to the University. The
challenged preferential policy was adopted on top of the unprecedentedly high
numbers (compared to many other universities) of preferred minorities entering
under the Top Ten Percent Law.6
5
I follow Judge Garza’s convention of using figures for enrolled Texas students for the
same reasons identified in his concurrence. See 631 F.3d at 260 n.19. If we were to expand
consideration to out-of-state students, then 23.8% of enrollees would not have gained
admission through the Top Ten Percent Law.
6
In dicta, the author of Fisher questions the efficacy, indeed the constitutionality of the
Top Ten Percent Law, but no such issue was before the panel.
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No. 09-50822
The pertinent question is thus whether a race-conscious admissions policy
adopted in this context is narrowly tailored to achieve the University’s goal of
increasing “diversity” on the campus. Contrary to the panel’s exercise of
deference, the Supreme Court holds that racial classifications are especially
arbitrary when used to achieve only minimal impact on enrollment. Parents
Involved, 551 U.S. at 734-35, 127 S. Ct. at 2760. As the Parents Involved Court
explained, “In Grutter, the consideration of race was viewed as indispensable in
more than tripling minority representation at the [Michigan] law school–from
4 to 14.5 percent.” Id. Despite the Fisher panel’s artful use of statistics to
describe the effect of the University of Texas’s race-conscious plan, the contrast
with Grutter is stark. As noted by the panel, more than 20% of the entering
freshmen are already African-American and Hispanic, resulting in real diversity
even absent a Grutter plan. The additional diversity contribution of the
University’s race-conscious admissions program is tiny, and far from
“indispensable.” It is one thing for the panel to accept “diversity” and achieving
a “critical mass” of preferred minority students as acceptable University goals.
It is quite another to approve gratuitous racial preferences when a race-neutral
policy has resulted in over one-fifth of University entrants being African-
American or Hispanic.
3. Finally, in an entirely novel embroidering on Grutter, the panel
repeatedly implies that an interest in “diversity” at the classroom level—in a
university that offers thousands of courses in multiple undergraduate schools
and majors—justifies enhanced race-conscious admissions. Fisher, 631 F.3d at
225 (citing studies that motivated the University’s race-conscious plan based on
classroom-level diversity); 237 (discussing the state’s interest in classroom-level
diversity as a constitutional matter); see also 240, 241, 243, 244, 245. Although
the opinion may not expressly render a “holding” on the permissibility of
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No. 09-50822
fostering diversity at the classroom level, it conveys a clear message. The
message is reinforced in Judge Garza’s concurrence, which rejects the panel
majority’s implication that “a university’s asserted interest in racial diversity
could justify race-conscious policies . . . not merely in the student body generally,
but major-by-major and classroom-by-classroom.”) 631 F.3d at 253-54. (Garza,
J., specially concurring).
The pernicious impact of aspiring to or measuring “diversity” at the
classroom level seems obvious upon reflection. Will the University accept this
“goal” as carte blanche to add minorities until a “critical mass” chooses nuclear
physics as a major? Will classroom diversity “suffer” in areas like applied math,
kinesiology, chemistry, Farsi, or hundreds of other subjects if, by chance, few or
no students of a certain race are enrolled? The panel opinion opens the door to
effective quotas in undergraduate majors in which certain minority students are
perceived to be “underrepresented.” It offers no stopping point for racial
preferences despite the logical absurdity of touting “diversity” as relevant to
every subject taught at the University of Texas. In another extension of Grutter,
the panel opinion’s approval of classroom “diversity” offers no ground for serious
judicial review of a terminus of the racial preference policy. Cf. Grutter, 539 U.S.
at 343, 123 S. Ct. at 2347 (“We expect that 25 years from now, the use of racial
preferences will no longer be necessary to further the interest approved today.”)
In the end, this case may determine the admissions policies of institutions
of higher learning throughout the Fifth Circuit, or beyond, for many years.
Reasonable minds may indeed differ on the extent of deference owed to
universities in the wake of Grutter, but the panel’s effective abandonment of
judicial strict scrutiny in favor of “deference” at every step of strict scrutiny
review contradicts Grutter and Parents Involved. The panel approves race
conscious admissions whose utility is highly dubious in comparison with the
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No. 09-50822
effect of the Top Ten Percent Law. And the opinion’s hints supporting
“classroom diversity” are without legal foundation, misguided and pernicious to
the goal of eventually ending racially conscious programs. I respectfully dissent
from the denial of en banc rehearing.
11