The University of Texas and Racial Preferences
The Supreme Court could consider an affirmative-action case.


Hans A. von Spakovsky

Abigail Fisher’s application to the University of Texas at Austin in 2008 was rejected. Had she been black or Hispanic, she almost certainly would have been accepted — and so she and another student in a similar circumstance filed a lawsuit. So far, the federal courts have ruled against them, reinforcing the odious notion that colleges can discriminate on the basis of race — as long as the right people are being discriminated against.

But that may soon change.

Fischer’s lawyers filed a petition with the Supreme Court on September 15 asking the Court to review Fisher v. University of Texas. If the case is accepted, the Court could clarify — and, more important, limit — how a university may consider an applicant’s skin color and ethnicity for admissions. Since hundreds of colleges use “preferences” (the politically correct term for discrimination), clarification would be a welcome outcome.

The jurisprudence of such racial discrimination has been controversial since 1978, when Regents of the University of California v. Bakke was decided by a fractured Supreme Court. In Bakke, the Court disallowed the use of racial quotas in the admissions process at the Davis Medical School, but Justice Lewis Powell left the door open to “a properly tailored affirmative action program designed to promote diversity.” For years, legal scholars debated what a “properly tailored” affirmative-action program entailed.

It wasn’t until 2003 that the high court revisited the question in a pair of cases from the University of Michigan (Grutter v. Bollinger and Gratz v. Bollinger) challenging the institution’s law-school- and undergraduate-admissions policies.

The Grutter opinion held that a racially diverse student body was so beneficial to the educational experience that there was a “compelling state interest” in lowering the admissions bar for some racial groups, and raising it for others. Still, the justices underscored that this regrettable opinion was not a blanket endorsement of the use of race in admissions. Any consideration of race must be carefully and narrowly crafted and executed.

One of the central tenets of Grutter requires that, before putting a thumb on the race scales, a school must pursue a “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.” Unfortunately, in the real world, few if any competitive universities (dominated by liberal administrators) have ever implemented race-neutral programs to replace racial preferences. But Texas schools are unique, and that is why the higher-education community is watching the Fisher case so closely.

In 1996, the Fifth Circuit Court of Appeals outlawed the use of race in admissions by any Texas university. In response, the state legislature passed a law that allowed any student in the top 10 percent of his high-school class to attend any public college in the state.

This boosted minority enrollment (and enrollment from rural areas) at the University of Texas–Austin (UT). In fact, enrollment of African Americans and Hispanics surged, surpassing minority enrollment levels achieved with race-based admissions. Tellingly, Larry Faulkner, the university’s president at the time, wrote that “the Top 10 Percent Law has enabled us to diversify enrollment at UT Austin with talented students who succeed.” Faulkner added that by 1999, enrollment levels for blacks and Hispanics had returned to the levels before the Fifth Circuit decision; further, minority students were earning higher grade-point averages and had better retention rates.

Yet on the very day that Grutter was decided, President Faulkner announced that UT would reintroduce race-based admissions. UT has defended its decision by arguing that while minority enrollment was up because of the Top 10 Percent Plan, it still does not mirror the overall demographics of Texas. Furthermore, UT asserts that individual classrooms still lack a “critical mass” of blacks and Hispanics, so reintroducing discriminatory preferences is justified.

Both arguments were attacked by Chief Judge Edith H. Jones, who wrote a dissent on behalf of seven out of 16 of her fellow judges. The “U.S. Constitution abhors racial preferences,” she said, adding that allowing UT to seek classroom diversity through racial preferences was “pernicious.” She questioned whether UT should be allowed to “add minorities until a ‘critical mass’ chooses” particular subjects such as nuclear physics or applied math. This was opening “the door to effective quotas in undergraduate majors” based on race.