Appeals Court Upholds Race-Conscious Admissions at U. of Texas

By Peter Schmidt | Chronicle of Higher Education
January 18, 2011

A federal appeals court panel on Tuesday upheld the use of race-conscious admissions by the University of Texas at Austin. In doing so, the judges rejected the argument that the policy is unconstitutional because state lawmakers had created a viable, race-neutral alternative to it when they mandated that public universities in Texas admit students in the top 10th of their high-school classes.

Although the three-judge panel of the U.S. Court of Appeals for the Fifth Circuit was unanimous in ruling that the university's policy complies with guidelines for colleges set forth by the U.S, Supreme Court, the judges were deeply divided in their reasoning.

The majority opinion, written by Judge Patrick E. Higgenbotham, attacked the state's admission guarantee based on class rank, known as the "Top 10 Percent Law," as "a blunt tool" of arguably questionable constitutionality. But a second judge, Carolyn Dineen King, refused in a concurring opinion to endorse Judge Higgenbotham's critique of the admissions guarantee, arguing that its wisdom and validity were not even considered by the court. And a third judge, Emilio M. Garza, issued a concurring opinion that heavily criticized the chief Supreme Court precedent the panel felt bound by in ruling in favor of Texas: the high court's 2003 Grutter v. Bollinger decision upholding the use of race-conscious admissions by the University of Michigan's law school.

In the short term, at least, the three judges' ruling has the effect of leaving intact a 2009 U.S. District Court decision dismissing the lawsuit, which had been brought by two white applicants that the university had rejected.

Patricia C. Ohlendorf, the Austin campus's vice president for legal affairs, said officials there were "extremely pleased" with the appeals panel's ruling because "the university has always maintained that its undergraduate admissions policy is constitutional and is consistent with the U.S, Supreme Court's guidance in Grutter v. Bollinger."

Contributing to the Debate

In the long term, however, Tuesday's ruling, with its sharply differing opinions, could inspire a wide-ranging debate in the likely event that the decision is appealed.

Edward J. Blum, director of the Project on Fair Representation, a group that helped represent the plaintiffs, said he was not sure whether his lawyers would appeal the three-judge panel's ruling to the full Fifth Circuit or instead ask the U.S. Supreme Court to take up the case. "The one thing we are obviously going to do is take it to a higher court," he said.

The majority opinion by Judge Higgenbotham characterized the race-conscious admissions policy that the University of Texas adopted after the Grutter decision as narrowly tailored, effective, and closely adhering to the Grutter decision's requirement that public colleges consider applicants' race or ethnicity only in the context of a holistic review of individual students.

Rather than challenging the university's consideration of race, Judge Higgenbotham aimed his criticism at the state's top-10-percent law, arguing that the admissions guarantee "is in many ways at war" with the pursuit of diversity endorsed by the Supreme Court in Grutter. He based that assessment partly on the law's negative impact on minority students with high-school class ranks below the top 10th of their class, and partly on university data showing that many of those admitted under the policy are clustered in certain programs, such as social work and education.

Judge Garza's opinion said, "I concur in the majority opinion because, despite my belief that Grutter represents a digression in the course of constitutional law, today's opinion is a faithful, if unfortunate, application of that misstep." It said Supreme Court Justice Sandra Day O'Connor's conclusion, in the opinion she wrote for the Grutter majority, that racial diversity yields educational benefits "rests almost entirely on intuitive appeal rather than concrete evidence." And it argues that the Austin campus's consideration of race brings in so few additional minority students that it fails to achieve its stated ends.

The opinion written by Judge Higgenbotham and signed by the two others makes clear that the three expect Texas's admission policy to be under legal scrutiny for a long time to come. "In this dynamic environment," it says, "our conclusions should not be taken to mean that [the University of Texas] is immune from its obligation to recalibrate its dual system of admissions as needed, and we cannot bless the university's race-conscious admissions program in perpetuity."

Federal Appeals Court Hears University of Texas Admissions Case

by Michael Kunzelman, Associated Press | Diverse Issues in Higher Ed
August 4, 2010

NEW ORLEANS – Two White students who were denied admission to the University of Texas at Austin asked a federal appeals court Tuesday to rule that the school impermissibly uses race in its undergraduate admissions decisions.

A three-judge panel from the 5th U.S. Circuit Court of Appeals didn't indicate when it will rule after hearing arguments in the case brought by Abigail Fisher and Rachel Michalewicz, who were denied admission to UT's 2008 freshman class.

U.S. District Judge Sam Sparks of Austin dismissed the students' lawsuit last year. They appealed, claiming UT's consideration of race in its admissions process is unconstitutional because it pursues a representational goal rather an educational one.

“A brute-force solution that says, ‘If I admit more minorities, I'm going to solve the problems,’ is not going to work,” said Bert Rein, an attorney for the students.

But a lawyer for the state says the university’s 2005 admissions policy was drafted to adhere to a 2003 decision by the U.S. Supreme Court upholding affirmative action at the University of Michigan's law school.

5th Circuit Judge Patrick Higginbotham seemed to agree, saying the UT system was “plainly crafted very, very carefully to comply with (the 2003 decision).”

“It appears to use race contextually,” the judge said.

Texas Solicitor General James Ho, who represented UT at the hearing, said the plaintiffs have conceded that UT's admissions policy is “constitutionally indistinguishable” from the University of Michigan law school's policy.

“They only argue that UT does not need such a policy,” Ho added.

In court papers, Ho said the Supreme Court's 2003 decision in Grutter v. Bollinger “ushered in an era of peace in an area previously plagued by tumultuous litigation.”

“Since that time, not a single suit has been filed to our knowledge challenging university affirmative action policies until now,” he wrote.

UT automatically offers admission to any applicant who graduates in the top 10 percent of a Texas high school class. The school also uses a formula based on applicants' class rank and standardized test scores and employs a “personal achievement score” that considers a student's extracurricular activities, community service and work experience.

In 2005, UT began including race as one of the “special circumstances” factors included in determining an applicant's personal achievement score.

UT says that policy change was necessary because the school did not have a sufficiently diverse student body prior to 2005. The plaintiffs countered in court papers that UT uses race in an “open-ended fashion, untethered to any educational goal.”

“You can't just say the goal justifies any means,” Rein told the judges.

Neither student is seeking to be admitted to UT. Fisher, whose parents attended Tuesday's hearing, enrolled at Louisiana State University. Michalewicz attends St. Edward's University in Austin, her lawyer said.