A three-judge panel of the Fifth Circuit Court of Appeals recently held that the use of race in admissions at the University of Texas, Austin (UT) was constitutional. But the victory for UT may be short lived, which serves as a reminder to public institutions of higher education of the instability in this area of law.

In Fisher v. University of Texas, two white Texas residents who were denied admission to UT sued the school, alleging racial discrimination under the federal Constitution and civil rights laws. UT has a two-tiered admissions process for Texas residents. All Texas residents in the top ten percent of their high school classes are immediately admitted. Other students compete for the remaining spots based on a holistic, multi-factor analysis that considers race as one of many factors. The students only challenged the second tier of the admissions process, not the first.

The court found that the second tier of the admissions process was constitutional despite its reliance on race in some cases. The court relied heavily on a 2004 U.S. Supreme Court decision, Grutter v. Bollinger, which upheld the University of Michigan Law School’s admissions process. As in Grutter, the admissions process in Fisher did not provide a quota of minority students who must be admitted or designate a specific numerical value to membership in a particular race during the admissions process. Instead, each student was looked at individually with race being only one type of diversity considered.

In Fisher, the court indicated a few characteristics of the UT process that made it even more likely to pass constitutional muster than the process at issue in Grutter, providing some additional guidance to schools that wish to imitate such programs. First, during the UT application process, a tally was not kept of the number of minority students who had been accepted. In Grutter, a minority student’s ability to be admitted could be impacted by the number of minority students who had been previously admitted. Second, under the UT process, race could enhance the chances of a majority student being admitted. For instance, if a white student attending a predominantly Hispanic school showed particular promise, his race might be considered when making admissions decisions. Finally, UT formally reviews the need for race-conscious measures and considers whether adequate race-neutral alternatives exist every five years and informally reviews its admissions procedures each year.

Although the court approved the second tier of the UT admissions process, there are limits to the victory for UT. The Fisher majority suggested that had it been asked to address the constitutionality of the first tier of the UT admissions process (under which applicants in the top ten percent are automatically admitted), it may not have found in favor of UT. The majority opinion pointed out a number of flaws in the first tier of the process, such as the lack of individualized assessment. Moreover, the students have appealed to the full Fifth Circuit Court of Appeals, asking it to reconsider the panel decision. The full Fifth Circuit has the authority to disagree with the panel decision.