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Federal Appeals Court Hears University of Texas Admissions Case

NEW ORLEANS – Two White students who were denied admission to the University of Texas at Austin asked a federal appeals court Tuesday to rule that the school impermissibly uses race in its undergraduate admissions decisions.

A three-judge panel from the 5th U.S. Circuit Court of Appeals didn’t indicate when it will rule after hearing arguments in the case brought by Abigail Fisher and Rachel Michalewicz, who were denied admission to UT’s 2008 freshman class.

U.S. District Judge Sam Sparks of Austin dismissed the students’ lawsuit last year. They appealed, claiming UT’s consideration of race in its admissions process is unconstitutional because it pursues a representational goal rather an educational one.

“A brute-force solution that says, ‘If I admit more minorities, I’m going to solve the problems,’ is not going to work,” said Bert Rein, an attorney for the students.

But a lawyer for the state says the university’s 2005 admissions policy was drafted to adhere to a 2003 decision by the U.S. Supreme Court upholding affirmative action at the University of Michigan’s law school.

5th Circuit Judge Patrick Higginbotham seemed to agree, saying the UT system was “plainly crafted very, very carefully to comply with (the 2003 decision).”

“It appears to use race contextually,” the judge said.

Texas Solicitor General James Ho, who represented UT at the hearing, said the plaintiffs have conceded that UT’s admissions policy is “constitutionally indistinguishable” from the University of Michigan law school’s policy.

“They only argue that UT does not need such a policy,” Ho added.

In court papers, Ho said the Supreme Court’s 2003 decision in Grutter v. Bollinger “ushered in an era of peace in an area previously plagued by tumultuous litigation.”

“Since that time, not a single suit has been filed to our knowledge challenging university affirmative action policies until now,” he wrote.

UT automatically offers admission to any applicant who graduates in the top 10 percent of a Texas high school class. The school also uses a formula based on applicants’ class rank and standardized test scores and employs a “personal achievement score” that considers a student’s extracurricular activities, community service and work experience.

In 2005, UT began including race as one of the “special circumstances” factors included in determining an applicant’s personal achievement score.

UT says that policy change was necessary because the school did not have a sufficiently diverse student body prior to 2005. The plaintiffs countered in court papers that UT uses race in an “open-ended fashion, untethered to any educational goal.”

“You can’t just say the goal justifies any means,” Rein told the judges.

Neither student is seeking to be admitted to UT. Fisher, whose parents attended Tuesday’s hearing, enrolled at Louisiana State University. Michalewicz attends St. Edward’s University in Austin, her lawyer said.

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