By Jonathan Stempel and Jon Herskovitz
(Reuters) - A divided federal appeals court has upheld the University of Texas at Austin's affirmative action program, a year after the school was ordered by the U.S. Supreme Court to scrutinize the school's use of race in admissions more closely.
By a 2-1 vote, a panel of the 5th U.S. Circuit Court of Appeals said on Tuesday it was persuaded that the use of race by the state's flagship university was justified to achieve diversity, given a lack of workable alternatives.
The school admits most freshmen through a program that guarantees admission to students in roughly the top 10 percent of their high school classes and uses other "holistic" factors, including race, to admit the remainder.
While the program has resulted in significant racial and ethnic diversity, the percentages of black and Hispanic students remain lower than in Texas' overall population.
Writing for the majority, Circuit Judge Patrick Higginbotham said the program met the "exacting scrutiny" required by the Supreme Court in June 2013, when Justice Anthony Kennedy wrote that courts must "verify that it is necessary for a university to use race" to achieve educational benefits of diversity.
Higginbotham said the school persuaded the panel of "its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race... To reject the UT Austin plan is to confound developing principles of neutral affirmative action."
Circuit Judge Emilio Garza dissented, saying the majority gave too much deference to the university, which failed to show that its admissions program was "narrowly tailored" to achieve the desired benefits.
The case was brought by Abigail Fisher, who claimed she was denied admission in favor of lesser-qualified minorities.
She later graduated from Louisiana State University, but stayed in the case to help others in similar positions.
Bert Rein, a lawyer for Fisher, did not immediately respond to requests for comment.
A group led by Edward Blum, a driving force behind the opposition to the university's program, released a statement in which Fisher expressed disappointment at the decision.
"I remain committed to continuing this lawsuit even if it means we appeal to the Supreme Court once again," Fisher said.
A university spokesman said a statement from the school was being prepared.
The case is Fisher v. University of Texas at Austin et al, 5th U.S. Circuit Court of Appeals, No. 09-50822.