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THE COLOR AND MONEY BLOG:
Tuesday, September 22, 2009
A terse formal notice of appeal filed in the Fifth Circuit Court this month says simply that the two plaintiffs--white students that the university had rejected--are appealing the August 17 decision by U.S. District Court Judge Sam Sparks to throw out their challenge to the university's admissions policy. Lawyers for the two students are expected to file briefs giving their reasoning for the appeal in the coming weeks.
As discussed in greater depth in an article in The Chronicle of Higher Education, Judge Sparks held in his August 17 ruling that he was dismissing the lawsuit because the university's race-conscious policy was narrowly tailored to achieve a compelling government interest, and therefore constitutional. The lawsuit argues that the university should not be allowed to return to considering applicants' race because it already has in place a race-neutral means of achieving diversity on campus, a requirement under state law that it admit any Texas student in the top 10 percent of his or her high school class.
Lawyers for the students had been characterizing Judge Sparks as unfriendly to their side since May of 2008, when he refused to order the university to re-evaluate the two students' application in a race-neutral manner based on his belief that they had little chance of prevailing. The Fifth Circuit appeals court, by contrast, in 1996 issued one of the harshest judicial denunciations of race-conscious admissions produced by a federal court so far, its Hopwood decision striking down race-conscious admissions at the University of Texas law school with language repudiating the idea that such admissions were constitutionally justified by the diversity they produced. As recounted in detail in Color and Money, Texas lawmakers adopted the 10-percent law in response to the Hopwood ruling, which was subsequently overturned by the U.S. Supreme Court's 2003 Grutter decision upholding the diversity rationale for such policies (but holding that race-neutral alternatives must be considered.)
The so-called "Texas Ten Percent Law" was watered down somewhat in May, when state lawmakers voted to cap the number of students automatically admitted to UT-Austin under it at 75 percent of each entering freshman class. If the challenge to race-conscious admissions prevails, state lawmakers will likely come under renewed pressure to preserve the 10-percent law. That measure is widely supported by many black, Hispanic, and rural legislators, but it is strongly opposed by many representatives of wealthy suburbs where competition from others from privileged backgrounds makes it harder for students to rank in the top tenth of their classes.