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DALLAS A federal appeals court ruled Tuesday that the University of Texas at Austin can consider race and ethnicity in its admissions standards.

The decision by a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans upheld a 2008 ruling by a district court that found UT did not violate legal precedent in refusing admission to two white, female students to that year s freshman class.

Abigail Fisher and Rachel Michalewicz alleged the university violated their constitutional right to equal protection.

In the majority opinion, Appeals Court Judge Patrick Higginbotham concurred with university attorneys that UT had complied with the U.S. Supreme Court s 2003 Grutter vs. Bollinger ruling that upheld racial considerations in university admissions at the University of Michigan Law School.

The university s policies and measured attention to the community it serves are consonant with the educational goals outlined in Grutter and do not support a finding that the university was engaged in improper racial balancing during our time frame of review, Higginbotham wrote.

In a concurring opinion, Appeals Court Judge Emilio Garza agreed UT had complied with the Grutter decision, but criticized the precedent.

I concur in the majority opinion because, despite my belief that Grutter represents a digression in the course of constitutional law, today s opinion is a faithful, if unfortunate application of that misstep, Garza wrote. The Supreme Court has chosen this erroneous path and only the (Supreme) Court can rectify the effort.

UT vice president for legal affairs Patricia Ohlendorf said the university is very pleased.

The university always has maintained that its undergraduate admissions policy is constitutional and follows the guidance given by the U.S. Supreme Court in Grutter v. Bollinger. The 5th Circuit has agreed.

The women s attorney, Bert Rein of Washington, D.C., said he was still reviewing the opinion but obviously we re disappointed in the result. No decision has been made on whether to appeal further, he said, but there are courses of action open to us. We ll be studying it.

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