The full U.S. Court of Appeals for the Fifth Circuit has refused, 9 to 7, to consider an appeal of a decision by a three-judge panel of the court to uphold the consideration of race in admissions decisions by the University of Texas. The panel's ruling, in January, rejected an argument that the state had shown it could use the "10 percent plan" -- in which all students who graduate in the top 10 percent of their high school classes are admitted -- to promote diversity without the consideration of race. The decision cited various flaws in the plan, and types of diversity that may not be produced by it.
As is the norm, the judges who voted not to reconsider the case did not issue any statement on their thinking. Five of the judges who would have heard the case issued a dissent expressing strong doubts about the panel's decision. These judges said that the three-judge panel had adopted "a new 'serious good faith consideration' standard of review, watering down" the Supreme Court's requirement for consideration of race only with "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,"
The plaintiffs who challenged the University of Texas policies still have the option of appealing to the U.S. Supreme Court.
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