Published: September 27, 2012
By Robert Barnes
AUSTIN — More than a half-century after the Supreme Court ordered the University of Texas to admit a black man to its law school, the sprawling live-oak-and-limestone campus is again the site of a monumental battle over the use of race in university admissions.
But this time the challenge comes from a white woman. Abigail Fisher says the color of her skin cost her a spot in the 2008 freshman class at the university she had longed to attend since she was a child.
Under the banner of racial diversity, Fisher contends, the UT admissions process — which considers race as a factor in choosing one-quarter of its students — unfairly favors African Americans and Hispanics at the expense of whites and Asian Americans.
“If any state action should respect racial equality, it is university admission,” Fisher said in her brief to the Supreme Court. “Selecting those who will benefit from the limited places available at universities has enormous consequences.”
Enormous, too, could be the consequences of Fisher’s case for the nation’s selective universities, public and private. If the court rules broadly, college administrators could be barred from considering race in admissions.
Arguments in the case are scheduled for next month, and the decision could be one of the most important and revealing of the Supreme Court’s term that begins Monday.
The court since 1978 has recognized that promoting diversity on the nation’s campuses allows a limited consideration of race that normally the Constitution would not countenance.
It has imposed restrictions — no quotas, no racial balancing to match demographics, no automatic boost for an applicant because of minority status. But as recently as 2003, the justices reaffirmed the view that “student body diversity is a compelling state interest that can justify the use of race in university admissions.”
But the court has changed dramatically since then, with a conservative majority now highly skeptical of — even hostile to — racial preferences. The justice most likely to decide the case for the divided court — Anthony M. Kennedy — has agreed in principle that diversity is important but has never voted to approve an affirmative-action plan.
At the same time, the national appeal of “diversity” — the goal of producing a legion of future leaders that matches the nation’s changing complexion — has become so ingrained that more than 70 amicus briefs have been filed on UT’s behalf.
Beyond traditional civil rights organizations, the support comes from military leaders, academics, psychologists, the business community and professional athletes. More than half of the Fortune 100 companies — American Express, Southwest Airlines and Halliburton among them — urge the justices to reaffirm the significance of diversity in higher education.
The Obama administration told the court that nothing less than the country’s future depends on a “well-qualified and diverse pool” of college graduates “who possess the understanding of diversity that is necessary to govern and defend the United States.”
UT President William Powers said that his admissions policies hew carefully to the guidelines of the Supreme Court’s 2003 decision and that applicants of every race may benefit from the individualized treatment.
The only goal, he said in an interview, is to create a university environment where students are “learning and drawing from and sharing their experiences with people from different backgrounds, and that’s diversity writ large — geographic diversity, intellectual diversity, ethnic diversity, religious diversity.”
“We’re trying to prepare them educationally for the world they’re going to live in,” he said.
The ‘Top 10’ law
During class changes on the 52,000-student campus, UT’s diversity is on full display.
The sidewalks and bike paths are filled with students of every ethnic group and hue — hipster plaid and mohawks, Greek-letter T-shirts and Longhorn burnt orange, sundresses and cowboy boots.
“That’s the beauty of UT,” said Kristin Thompson, 22, a civil engineering major from a Dallas suburb. “It’s a place that encourages you to find your niche and socialize with people who have similar interests as you, but also challenges you to be amongst people who have different views, different backgrounds, different opinions from your own.”
It is one of the most diverse major universities in the country: In the incoming freshman class, the largest in UT history, 46 percent are white, 24 percent Hispanic, 18 percent Asian American and 5 percent black.
The numbers are the result of UT’s unique hybrid admissions policy. Under a 1997 law, the highest ranked students in every Texas high school are guaranteed admission. Although it is called the “Top 10” law, the cutoff line varies depending on available class size; next year’s freshmen at UT will have to have finished in the top 8 percent of their class to qualify.
Because of the segregated composition of most Texas high schools, that guarantees diversity.
It is the selection process for the rest of the class that has drawn constitutional challenge.
The university said it looks at each application individually and combines an academic score based on class rank, test scores and high school curriculum with a “personal achievement index.” That index derives from two personal essays and a list of six considerations, such as leadership potential, community service, work experience and “special circumstance.” Race is part of the “special circumstance.”
Thus, UT claims its consideration of race is “a factor of a factor of a factor of a factor” in its “holistic” review of each applicant.
Fisher finished outside the top 10 percent of her high school in Sugar Land, Tex. She says black and Hispanic students with lesser qualifications were admitted, while she was offered admission to another Texas institution with a chance to transfer to UT later. Instead, she went to Louisiana State University, from which she graduated with a degree in finance in the spring. She has declined through her attorneys to be interviewed.
UT says that even if Fisher had received a perfect personal achievement score, she would not have made the cut in 2008. It acknowledges some minority students with lesser or equal scores to Fisher’s were admitted, but so were other white students. They say this shows the decisions are based on selecting the best class, not simply on racial diversity.
Thompson said she can imagine Fisher’s disappointment. “A lot of students work their behinds off, from middle school, to attend this university,” she said. But diversity “dictates the climate of our campus and the success of our students and the reputation of the university.”
Thompson is probably the kind of student whom Powers, the UT president, thinks of when he talks about the value of diversity: a minority in a nontraditional major, a former president of the Black Student Alliance, an involved member of student government who said one of her proudest memories of her time at Texas will be being part of the effort to remove the name of a former Ku Klux Klan leader from a campus dorm.
But while Thompson and the Black Student Alliance supports the continued use of racial considerations, she was admitted under the race-neutral Top 10 law.
Fisher’s attorneys would argue that the plan provides so much of the campus’s diversity that the use of race in the remaining admissions cannot be the “last resort” envisioned in the Supreme Court’s previous decisions.
And they are particularly scornful of another of the university’s arguments. UT’s brief says that its holistic approach is important because it also allows “diversity within diversity.” For instance, it says selecting the “African-American or Hispanic child of successful professionals in Dallas” might serve to break down racial stereotypes.
UT, Fisher’s brief replies, apparently believes race-neutral systems “failed to enroll enough of its preferred kind of minorities.”
Powers said that is untrue. “If you look at our overall student population, including non-minorities, we have diversified tremendously on first-generation [college attendees], rural and low-income students.”
The question, he said, is whether the university may be allowed to assemble a class it thinks will benefit all. “For those who think we ought to just fill our class with automatic admission, there is not a university in the country that does that, there is not a business in the country that would select people that way,” Powers said. “I think if there were, you would have people saying they are not being treated as individuals.”
Court itself is a key factor
There is little doubt that, if the court says race may not be considered, the numbers of white and Asian American students on college campuses will increase and the numbers of blacks and Hispanics will fall. The University of California submitted a brief saying it has not been able to “reverse the precipitous decline in minority admission and enrollment” that followed voters’ decision in 1996 to explicitly prohibit affirmative action in higher education.
But the most important factor in the outcome is the court itself. Justice Sandra Day O’Connor wrote the 2003 decision in Grutter v. Bollinger, the University of Michigan case that reaffirmed the ability of universities to use race in a limited way.
Her successor, Justice Samuel A. Alito Jr., has proved to be a staunch opponent of race-based classifications, as has Chief Justice John G. Roberts Jr. “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity,’ ” Roberts wrote in a 2007 decision about K-12 education.
Justice Elena Kagan, President Obama’s former solicitor general, is recused from the case. Kennedy is by all accounts the pivotal justice in the case — the briefs submitted by Fisher and UT mention his opinions a combined 50 times.
In case of a tie vote, UT’s plan would remain in place, although the decision would not serve as a precedent. And if the majority decides against Texas, it could do so narrowly — saying that because the Top 10 plan has diversified the student body, there is no need to consider race in the rest of the admissions — or broadly, by overturning Grutter, as some have urged the court to do.
O’Connor said in her opinion that the court hoped race-based actions would be no longer needed in 25 years. But the current court’s decision to take the Texas case makes others believe that the end is coming much sooner.
“I don’t think anyone thinks that affirmative action is long for this world,” said Pamela Harris, a Supreme Court practitioner who served in the Obama Justice Department and is a visiting law professor at Georgetown.
“Maybe it won’t be this case, maybe it will be the next case, but that’s what happens” when the court’s membership changes, she said.