Bench Memos

Doubling Down on Race at the University of Texas

I have previously written about the saga of Abigail Fisher’s challenge to the University of Texas at Austin’s race-conscious “holistic” admissions process, here and here.

In a nutshell, after the Fifth Circuit banned UT from using race as a factor in admission decisions in the 1996 Hopwood case, in 1997 the Texas legislature passed House Bill 588, the so-called Top Ten Percent Law, which grants automatic admission to UT to all students in the top 10 percent of their high school classes. This clever subterfuge allowed UT, which dreaded the demographic consequences of a meritocratic admissions process, to maintain the “desired” level of racial and ethnic diversity without explicitly considering those factors in admissions decisions. It worked so well, in fact, that UT was more diverse following H.B. 588 than it was prior to Hopwood.

Higher education bureaucrats always seek greater diversity, so when the U.S. Supreme Court ruled 5-4 in Grutter v. Bollinger (2003) that the University of Michigan could consider applicants’ race in admissions decisions so the student body would be mixed enough to realize the supposed “educational benefits” of diversity, UT immediately renewed the use of race in a “holistic” component supplementing the Top Ten Percent Rule. This was problematic because, unlike the University of Michigan, UT had already achieved a diverse student body without explicitly considering race. A legal challenge was inevitable.

Abigail Fisher is a white applicant who was denied admission to UT’s 2008 entering class. She sued, challenging the constitutionality of UT’s race-conscious admissions process. After losing in the trial court and Fifth Circuit, in 2013 Fisher won a partial victory in the Supreme Court. In Fisher v. University of Texas I the Court found 7-1 (Justice Elena Kagan abstaining) that the Fifth Circuit had not correctly applied Grutter, and remanded the case for reconsideration. In 2014, the Fifth Circuit rubber-stamped its previous decision (this time with a dissenting opinion by Judge Emilio Garza), and earlier this year the Supreme Court granted cert a second time. Fisher v. UT II will be heard on December 9, 2015.

The much ballyhooed issue is whether UT has met its burden of proving that consideration of race (a “suspect classification”) in admissions is “necessary” under Grutter to achieve the elusive “educational benefits” of diversity. In response to Fisher’s arguments that the race-conscious “holistic” component is unnecessary (because of the facially neutral Top Ten Percent Law), UT contends that the Top Ten Percent Law does not yield the “right mix” of minorities — too many poor blacks from inner-city high schools and not enough middle class blacks from the suburbs. This dicey position is rendered even more tenuous by several complicating background factors: The author of Grutter, Justice Sandra Day O’Connor, subsequently retired and was replaced by an opponent of race-based admissions, Justice Samuel Alito; a sometimes-critical swing vote, Justice Anthony Kennedy, dissented in Grutter and wrote the opinion in Fisher I; following remand in Fisher I, the former President of UT, Bill Powers, was forced to resign and was implicated in a preferential-admissions scandal benefiting influential donors and legislators; and, finally, the Supreme Court presumably did not grant cert a second time just to affirm.

With the stage thus set, I was astonished to read a news report describing a November 5 speech made by the new Chancellor of the UT System, Bill McRaven, to the UT System Board of Regents. In that speech, McRaven announced a hiring policy similar to the NFL’s Rooney Rule, requiring that a woman or minority candidate be interviewed for every high-level position at the UT System’s 14 universities and medical schools. McRaven said that the rule will pertain to all hires at the dean level or higher. It will be encouraged, but not required for professor or other mid-level jobs. In McRaven’s own words: “We need to have our faculty reflect more of our student population. We want to make sure that the students can look up to faculty members of the same ethnicity and say, ‘This is who I want to be.’”

McRaven made it clear that the rule was intended to ensure that women and minorities will be strongly considered. A woman or minority will have to be considered all the way until the last round of the hiring process. McRaven said he will also require each school to submit a report to him detailing how it plans to close the demographic gap. Citing statistics showing that 32 percent of UT System students are white compared to 62 percent of faculty (System-wide, not just at UT-Austin), McRaven stated that “We need faculty, administrators and campus leaders who understand the people they’re serving, who come from the same places.” McRaven added: “This will begin to move the needle, but if we don’t start now, then 20, 30 years from now we won’t look much different.” (Emphasis added.)

The irony is that Grutter demands a highly-nuanced approach to race. All of UT’s submissions in the Fisher case have emphasized the subtlety and care with which UT purports to approach the issue of diversity on campus, attempting to quantify the intangible “benefits” associated with the demographics of the student body. In contrast, the “rule” announced by McRaven is a meat ax, not a scalpel. Higher education is not football, and selecting the best qualified candidates for high-level positions (dean level and higher) at a world-class university is more complicated than hiring a head coach. McRaven’s speech shows that behind the veneer of UT’s elaborate legal arguments is a simplistic desire for racial and gender parity: a student body, faculty, and administration that “look like America.” Racial quotas, however, are not permitted by the 14th Amendment. McRaven’s crude advocacy of a cookie-cutter UT System, in which end-result equality trumps considerations of individual merit, demonstrates that UT’s “holistic” admissions process is a Potemkin Village, concealing UT’s real agenda — counting by race.

Chancellor McRaven’s candid remarks provide one more reason for the justices to overrule Grutter and rule in favor of Abigail Fisher.

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