The American Association for Access, Equity and Diversity Hails the Fifth Circuit Court of Appeals’ Decision in the Fisher v. University of Texas Case

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The University Properly demonstrated its Use of Race was Narrowly Tailored to Achieve Diversity

The American Association for Access, Equity and Diversity (AAAED), an organization of equal opportunity, affirmative action and diversity professionals, is very pleased that the Fifth Circuit Court of Appeals ruled in favor of the University of Texas at Austin and its efforts to achieve a diverse student body. AAAED President Marshall Rose stated: “Now that the Fifth Circuit has handed down its decision in Abigail Fisher v. University of Texas at Austin, we wish to underscore that diversity remains a compelling interest, that colleges and universities may take race into account among many factors, and that the limited use of race can be done in a way that passes constitutional muster.”

Founded in 1974 as the American Association for Affirmative Action (AAAA), AAAED is a national not-for-profit association of professionals working in the areas of compliance and diversity. AAAED has more than 40 years of leadership in providing professional training to members, enabling them to be more successful and productive in their careers. It also promotes understanding and advocacy of affirmative action and other equal opportunity and related compliance laws and regulations to enhance the diversity tenets of access, inclusion and equality in employment, economic and educational opportunities.

In 2013, the U.S. Supreme Court remanded the Fisher case to the lower court with the admonition that: "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." The Fifth Circuit has ruled that the University made the requisite showing that it had explored race-neutral alternatives, including the Texas Ten Percent Plan (top ten percent of Texas high school graduates automatically admitted) and continued to need to use race, among other factors, in order to achieve a diverse student body. Whether this case will be heard by the Supreme Court for a second time remains to be seen.

In the association’s amicus brief filed to support the University of Texas, AAAA argued that the University of Texas at Austin worked hard to develop a fair and inclusive admissions program that contributed to diversity on campus in the broadest sense of the word without unduly burdening anyone. AAAA also argued that the steps the University took to promote diversity were “narrowly tailored,” – another constitutional requirement – and necessary to achieve the compelling state interest.

On the merits, the Fifth Circuit quite effectively stated the case for the necessity of a holistic component as a counterpart to the Top Ten Percent system and for the inclusion of race as a small but nonetheless essential part of that holistic analysis. “While the Top Ten Percent program may increase the raw numbers of minority admissions, the court notes that it achieves this end largely because of the unfortunate re-segregation of Texas secondary schools,” stated AAAED Board member and amicus co-counsel Attorney Dean Sparlin. Moreover, so-called race-neutral measures are never truly race-neutral. “Admissions criteria such as test scores have inherent biases and a have statistically significant adverse impact on African-American and Latino students,” added Sparlin.

Executive Director Shirley J. Wilcher said: “The University’s “holistic review” process contributes to the rich diversity of talents, perspectives and abilities of all students, both minority and nonminority, by accepting students who would otherwise have been excluded by the Ten Percent program. “ “In this increasingly diverse nation, our future depends upon all qualified individuals receiving a chance to compete in education, employment and business and we commend the University of Texas at Austin for its continued leadership and courage,” added President Rose.

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