The Austin Chronicle

Affirming Diversity in College Admissions

Fisher v. University of Texas at Austin

By Richard Whittaker, July 1, 2016, News

UT Austin can keep using race as part of its admissions process: That was the ruling of the U.S. Supreme Court on June 23 in the landmark case of Fisher v. University of Texas at Austin. University President Gregory Fenves has already said that the ruling affirms the institution's core purpose of providing the highest quality education for all students, explaining, "Diversity is essential to carry out that mission."

The ruling was good news for Austin high schoolers, since UT is not just the state's flagship university: It's also for many their first choice if they would like to stay at home while studying. AISD Board President Kendall Pace said she was "happy with the way the SCOTUS ruling came down."

The 7-1 decision marks the end of a nearly decadelong debate over the use of race as a component of admissions policy at UT. On April 7, 2008, Abigail Noel Fisher, a graduate of Stephen F. Austin High in Sugar Land, filed a discrimination suit against UT over its admissions process: Ten days later, she was joined in the suit by Rachel Multer Michalewicz, a student at Jack C. Hays High in Hays CISD.

This isn't the first time that UT has had to defend its use of race in building a student body before the nation's highest court. In 1996, while not ruling against race-based admissions as a concept, justices struck down the specifics of UT School of Law's affirmative action strategy in Hopwood v. Texas. Seven years later, the issue returned with Grutter v. Bollinger, a 5-4 decision that this time upheld the use of race as a component of admissions at the University of Mich­igan Law School. The difference between the two was that Michigan's system was more finely tailored than that of Texas.

Since Hopwood, the majority of student seats at Texas public universities are allocated under what is known as the Top 10% Rule, whereby the top 10% of any graduating high school class is automatically granted admission to a public college or university. While neither Fisher nor Michalewicz benefited from the rule (having graduated outside that upper echelon of their class), that was not what their suit was about. The suit instead challenged how UT allocates the remaining seats. Post-Grutter, admissions officers are allowed to use a slate of criteria, including scores, extra-curricular activities, and race. It was that last component that Fisher and Michal­ewicz challenged, arguing that it violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

A huge amount had changed since that original 2008 filing. Fisher graduated from LSU, Michalewicz withdrew from the suit, and most of the key defendants, including UT President Bill Powers and Vice Provost Bruce Walker, and UT System Chancellor Mark Yudof and Vice Chancellor David Prior, had all left the administration. More­over, Fisher had lost in district court, and at the 5th Circuit Court of Appeals, appealed that decision to SCOTUS, which sent the suit back down to the 5th Circuit, which again rejected her plea, and so last Decem­ber her lawyers presented to SCOTUS yet again. The question was whether the court would find if the current Texas system met the standard developed in Grutter, and could pass strict judicial scrutiny.

Before last Thursday's ruling, the disposition of the bench seemed unclear. There are four new justices since Grutter, plus a vacant seat due to the death of Justice Antonin Scalia; additionally, Justice Elena Kagan recused herself because she worked on the case while she was U.S. Solicitor General. However, the ruling finally came down, 4-3, in favor of UT.

The key vote was Justice Anthony Ken­nedy. He had been part of the dissenting minority in Grutter: This time he was not only the pivotal fourth voice for the defendants, but even authored the majority opinion. The key finding in Grutter is that universities have a compelling interest in having a diverse student body that goes beyond simple test scores: As Kennedy quoted, this "promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races." In his majority opinion, Kennedy noted that UT had spent the seven years between Hopwood and Grutter trying to create a diverse student body with "a race-neutral holistic review," and that had failed. The current system not only created that desirable racially diverse student body, but did so without violating the Equal Protection Clause.

So, for the moment, both the Top 10% Rule and UT's system for filling remaining seats stay in place. However, the situation is not as clear cut as it may seem. Since the rule was introduced, Texas' population has skyrocketed, while the size of the student body at UT has remained pretty static. Raw math meant that, eventually, the whole admitting class would be admitted under Top 10%. So in 2009, lawmakers responded by giving UT greater ability to leave some seats open: Starting in 2011, they were allowed to cap automatic admissions at 75% by dropping the portion of any graduating high school class it has to take. Since then, the number admitted under Top 10% has actually fluctuated between 7% and 8%.

The reduction means the competition for those seats becomes tougher. Moreover, AISD's Pace noted that, while the rule covers general admission to UT, the individual colleges under the university umbrella still have "greater autonomy on who gets in [and] reserve the right to say which school you get a degree from in UT." If higher education is to be truly diverse, and truly reflective of the broader population, she argued, the process has to start at the elementary level, to ensure all kids have an equal chance at the school of their choice.

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