In a case that has seesawed back and forth between the Supreme Court and lower courts, the latest swing has the Fifth Circuit upholding the affirmative action program at the University of Texas. The court notes that “the Supreme Court faulted … this Court’s review of UT Austin’s means to achieve the permissible goal of diversity—whether UT Austin’s efforts were narrowly tailored to achieve the end of a diverse student body. Our charge is to give exacting scrutiny to these efforts.” Applying a strict scrutiny review, the court concludes, “[T]he backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass. We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court.”

No doubt, the last has not been heard of the case Fisher v. Univ. of Texas at Austin. In anticipation of further litigation, the reader may wish to consult the procedural history laid out in today’s Chronicle of Higher Education.

[RL]