Federal Appeals Court Asked to Rehear Landmark Race Preferences Case

Fifth Circuit Didn’t Follow U.S. Supreme Court Instructions, Black Activists Say: The Judges Didn’t Do Their Job

“Racial preferences are a narcotic for the nation’s liberal education elites, and like a drug addiction, must be dealt with…”

Washington, D.C. – The Project 21 black leadership network and other organizations today filed a legal brief with the federal Fifth Circuit Court of Appeals asking for the entire court to hear an appeal of the race preference case of Abigail Noel Fisher v. University of Texas at Austin, et al.

The Project 21 amicus curiae (“friend of the court”) brief, written by the Pacific Legal Foundation and joined by the Center for Equal Opportunity, Individual Rights Foundation and Reason Foundation, argues the Fifth Circuit panel ignored the Supreme Court’s ruling that tasked the court to “verify that it is ‘necessary’ for a university to use race to achieve the educational benefits of diversity” and that they “failed to properly scrutinize the purported benefits that flow from the race-conscious component of the university’s admissions plan.”

“The appeals court in the Fisher case has simply ignored the Supreme Court’s directive and declared the University of Texas at Austin’s affirmative action policy acceptable without undergoing any of the appropriate legal analysis,” said Project 21 Co-Chairman Horace Cooper, a legal commentator who taught constitutional law at George Mason University and a former leadership staff member for the U.S. House of Representatives. “Using race as an admissions factor should be the last resort, not the first one.”

Project 21’s Cooper is a University of Texas at Austin graduate.

In 2013, the U.S. Supreme Court rendered a 7-1 decision that sent the Fisher case back to the Fifth Circuit with instructions that the case — in which the white plaintiff said race preferences prevented her acceptance at the University of Texas at Austin in favor of a lesser-qualified minority applicant — be retried under standards of “strict scrutiny.” This rehearing was supposed to be a thoughtful and thorough analysis of whether race preferences were a necessary part of the school admissions policy in order to obtain a “critical mass” of minority students and achieve a diverse student body.

This should be a greater challenge for the University of Texas at Austin than for most schools because a top percentage of graduating Texas high school students are guaranteed admission to state universities (ten percent at the time the Fisher lawsuit was filed, but lowered at UT Austin to around eight percent in 2011).

“The 2013 Supreme Court ruling, which sent the Fisher case back to the Fifth Circuit, solved little as we now know,” said Project 21’s Joe R. Hicks, the former executive director of the Southern Christian Leadership Conference’s Greater Los Angeles chapter. “The justices had yet another opportunity to put final nails in the coffin of racial preferences and rule finally on the issue of whether or not there is a ‘compelling’ state interest in racially-discriminatory admission policies in public education. The Court failed, sending down another narrowly-tailored ruling. Racial preferences are a narcotic for the nation’s liberal education elites, and like a drug addiction, must be dealt with by using direct, clear actions.”

If the appeal is granted, the three-judge panel’s July 15, 2014 ruling that the university’s pro-racial preferences admissions policy is constitutional will be thrown out and the entire membership of the Fifth Circuit Court of Appeals will rehear and render a new decision in the case.

The Project 21 legal brief notes that “[t]he costs of racial preferences are many and widely recognized by the courts” while discussion of benefits are more elusive. The brief focuses on an “academic mismatch” that can occur when preferences are used as a means to an end without properly weighing costs and benefits, and how a mismatch can actually increase black dropout rates:

Academic mismatch begins when elite universities lower their academic standards to admit a more racially diverse student population. Schools one or two academic tiers below must do likewise, since the minority students who might have attended those lower ranking universities based on their own academic record are instead attending the elite colleges. The result is a significant gap in academic credentials between minority and nonminority students at all levels.

Even supporters of racial preferences have had to acknowledge that students who attend schools where their academic credentials are substantially below those of their fellow students will tend to perform poorly…

No matter where academic mismatch occurs, lower grades lead to lower levels of academic self-confidence, which in turn increases the likelihood that minority students will lose interest in continuing their education and drop out. The panel decision failed to consider the costs of racial preference — including mismatch — when determining that the University’s admissions policy was narrowly tailored…

Project 21’s Chelsi Henry, a lawyer, added: “At the heart of this case is the well-being of minority students across America. Racial bias still exists and there must remain a solution to assist in equal opportunity for all. However, we should not allow that assistance to hinder the academic development and mental state of minority students.”

Project 21 has participated in three other legal briefs regarding the Fisher case, including two at the Supreme Court level.

During the last term of the U.S. Supreme Court, Project 21 was involved in Schuette v. Coalition to Defend Affirmative Action. It was involved in Fisher v. University of Texas at Austin and Shelby County v. Holder during the previous term. Over the years, it has been involved in ten legal briefs in major cases. Project 21 legal experts and other members discussed these cases in hundreds of media interviews and citations that include MSNBC, the Fox News Channel, HBO, the Westwood One radio network, the Christian Science Monitor and Reuters and well over a thousand media appearances on a myriad of other issues facing black Americans that include the economy, regulation and immigration.

In 2014, Project 21 members have already been interviewed or cited by the media over 1,000 times — including on TVOne, the Philadelphia Inquirer, Fox News Channel, Westwood One, St. Louis Post-Dispatch, SiriusXM satellite radio and 50,000-watt talk radio stations such as WBZ-Boston and KDKA-Pittsburgh — on topics including civil rights, entitlement programs, the economy, voter ID, race preferences, education, illegal immigration and corporate social responsibility. Project 21 has also defended voter ID laws at the United Nations. Its volunteer members come from all walks of life and are not salaried political professionals.

Project 21, a leading voice of black conservatives for over two decades, is sponsored by the National Center for Public Policy Research (https://nationalcenter.org).

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