Fifth Circuit Examines UT Austin After Affirmative Action’s End

A Fifth Circuit panel pressed the University of Texas at Austin on its admissions process, after the group behind the Supreme Court’s ruling against the use of affirmative action in higher education admissions suggested they weren’t complying with that landmark decision.

Cameron Norris, an attorney for Students for Fair Admissions, told the US Court of Appeals for the Fifth Circuit that some admissions officials at UT Austin still have access to data on applicants’ race and ethnicity. He said there’s “strong evidence” that the school is still considering race because it hadn’t firewalled those admissions officials from that data, even though the institution has said it doesn’t consider it.

“Even if they’re not doing so, their refusal to adopt these safeguards are powerful evidence” that race and ethnicity still may be considered in the process, said Norris, a partner at Consovoy McCarthy.

The lawsuit is one of several filed by Students for Fair Admissions, a group behind the cases that led to the Supreme Court’s 2023 ruling in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, which ended the consideration of race in higher education admissions.

Norris asked the appeals court to reverse a district court’s finding that the case is moot, due to UT Austin’s new policy which the university says takes race out of admissions decisions. He said they’re also asking for an injunction or a grant of summary judgment against UT.

Norris also pointed to admissions data from UT Austin which shows that, after the Supreme Court’s ruling, there was no change in the percentage of Black students admitted and only a 1% drop for Hispanic students. “That is not the type of change we would have expected if there had been major changes to the admissions process,” he said.

William Christian, a lawyer with Graves Dougherty Hearon & Moody representing UT Austin, said the case is moot. He said the university hires roughly 100 temporary employees annually to go over applications as part of a holistic review, and that race and ethnicity data is stripped from those files.

He said other admissions officials need to access the data so they can fulfill reporting obligations on student race and ethnicity under Texas state law, as well as to help recruit admitted students to enroll.

Judge Stuart Kyle Duncan asked whether the racial composition of an incoming class would be “relevant evidence” in determining the effectiveness of the new policy. Christian said that’s possible, but not in this lawsuit. He said that SFFA or another party would have to file a new complaint alleging that UT isn’t following its policy.

Judge Jerry Smith also asked Christian why the university would oppose an injunction, if it says it’s not considering race in admissions. “Why wouldn’t it help you?” Smith asked.

Christian said there’s no need for a court order. “The institution believes it’s capable of enforcing its policy,” he said, adding that those who violated it would likely be disciplined and potentially fired.

He added that the change was an involuntary one, as it was required by the change in law after the Supreme Court’s 2023 ruling. He said that means the Fifth Circuit should find the case is moot.

Sumayya Saleh, an attorney for the Lawyers’ Committee for Civil Rights Under Law, also argued on behalf of intervening students and student groups who want to keep lawful ways of promoting diversity on the campus.

She said that even if other institutions like Harvard and the University of North Carolina, which were the subjects of the Supreme Court litigation, agreed to firewall race and ethnicity data from admissions officers as part of agreements with SFFA, that doesn’t mean the group can obtain a court order implementing such a firewall.

“At the end of the day, it’s not legally required and it’s not something they’re legally entitled to,” Saleh said.

Judge James Graves raised that issue to Norris, saying “there’s no duty” that those officers “not know” about the race of an applicant.

Norris said he believes the Supreme Court has said those officials shouldn’t know it.

The case is Students for Fair Admissions v. UT Austin, 5th Cir., No. 24-50631, oral argument 5/1/25