The University of Texas, renewing its defense of its freshman class admissions policy, contended on Monday that the ongoing court battle has become nothing more than an “ideological struggle” over well-established Supreme Court precedent allowing some use of race in selecting new students.

The brief was in response to a request by a white applicant denied admission, who is seeking en banc rehearing of a new round in her challenge at the U.S. Court of Appeals for the Fifth Circuit. The challenger, Abigail Fisher, has the support of a dozen amicus briefs. Her case is back before that court after a trip to the Supreme Court.

The university’s brief mainly argued that the three-judge panel of the Fifth Circuit, which upheld the admissions policy for a second time, did exactly the careful review that the Supreme Court had ordered it to make, and that the review demonstrated again that the “modest” use of a racial factor amid a “holistic” review of each individual applicant was necessary to achieve the value of broad diversity in its student body.

At no point, the new filing contended, did the three-judge panel allow the university to get by with any argument without having to satisfy ”strict scrutiny” – the most demanding constitutional test.

Before moving to its “holistic” plan, the brief contended, the university had tried to achieve racial diversity under a 1997 law which mandated that the university automatically accept any applicant who had graduated in the top ten per cent of a high school’s graduating class in Texas.

That “Top Ten Percent Plan,” however, has not worked to bring in highly talented students with a wide variety of backgrounds and has not done enough to contribute to racial diversity because the formula simply produces admissions that represent racially segregated residential patterns across Texas, the brief contended.

The university in effect suggested that the Fifth Circuit pay little attention to much of the Fisher brief because it relied so heavily upon dissenting opinions rather than controlling opinions applying Supreme Court precedent on the permissible use of race as a factor in public policy.

Aside from the university’s legal arguments, it attempted to emphasize anew its continuing claims that this case does not really create a wide-ranging precedent, because it is only about a single applicant who would not have gotten into the university at any rate, and now has no claim except a demand for a return of a $100 fee that she had paid. She represents no group of applicants, and has not sought even minimal damage payments, the university contended.

In association with Bloomberg Law