Bench Memos

NRO’s home for judicial news and analysis.

University of Texas-Austin’s Incoherent Racial Preferences



The Supreme Court today agreed to hear arguments in Fisher v. University of Texas at Austin, a case challenging the University of Texas at Austin’s incoherent racial preferences for school admission.  In the program at issue, the University admits two groups of students.  The first group includes everyone in the top 10% of their high school class.  The remaining slots are filled using a broader range of factors, including race, which was not an admissions factor until 2005.  The aim of including racial preferences is to achieve racial balancing in a particular major, reaching down to even the classroom level.   

The University’s position is remarkably illogical and out of the legal mainstream, even for those that accept the now constitutionally questionable premise that racial preferences are legitimate.  Their program is not designed to correct racial enrollment or increasing diversity on campus.  The program’s targeting of racial “balance” within majors and classes makes that clear.  Furthermore, minority enrollment increased significantly to 21% after the state abandoned a racial preferences plan in favor of the 10% plan, and it only marginally increased after the state added racial preferences in 2005.    Instead, the program is an ill-conceived and impractical attempt at racial balancing within the actual classroom.  It ignores the pain caused by denying admission to otherwise qualified applicants for something they cannot control, in quest of attaining a fleeting goal with almost non-existent benefits.  

Many observers believe that this case could mark the end of racial preferences in higher education admissions, as the makeup of the Court has become much less favorable to racial preferences since Grutter v. Bollinger (2003), a case that narrowly upheld the University of Michigan Law School’s use of racial preferences.  


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