On October 10, 2012, the United States Supreme Court will hear arguments in Fisher v. University of Texas at Austin, a major affirmative action case that could fundamentally change college admissions for many students. At issue are questions of how schools achieve racial diversity in their student bodies—or if they should even be trying. The AAUP has signed on to an amicus brief by the American Council on Education in support of the University of Texas.
This morning, I attended an event sponsored by the American Civil Liberties Union discussing the case (and other cases expected to be heard in the upcoming term). In this blog post, I will outline the history of the Texas program and the specific circumstances of this case, and next week, I’ll write about the ACLU’s view of the case and how the justices might decide on it. I’d like to thank Dennis Parker, of the ACLU’s Racial Justice Program, for explaining the issues in this case and answering my many questions about it.
The University of Texas has a long history of litigation over issues of race and admissions. After trying to increase the diversity of its student body in the 1980s and 1990s, the university was sued by four white applicants to the UT law school, who were not accepted—because, they say, of their race. The Fifth Circuit court agreed, and, in the 1996 decision in Hopwood v. Texas, ordered the university to stop considering race at all in its admissions. There was an immediate 40 percent drop in the number of African American students at UT the following year.
In 1997, the Texas legislature responded to the Hopwood decision by passing a law that guaranteed admission to the University of Texas for the top 10 percent of every high school’s graduating class. Since then, 60 to 80 percent of UT’s undergraduate classes have been filled by students under this system. To fill the rest of the spots, UT considers a “personal achievement index” of other factors—like extra-curricular activities, personal characteristics, and school leadership positions. The 10 percent plan did increase racial diversity at UT, but not to the levels that had been reached before the Hopwood decision.
Administrators got their chance to increase racial diversity in 2003, after the Supreme Court ruled in Grutter v. Bollinger that schools can take race into account in certain narrow ways. This ruling in practice overturned the Hopwood decision, and, using this new case as justification, UT began to consider race as one of the factors in the personal achievement index.
And that brings us to the current case. In 2008, a Texas student named Abigail Fisher applied to UT. She was not in the top 10 percent of her class, so she did not get admitted automatically under that system. The school then considered her under the secondary, personal achievement system, and declined to offer her admission. Fisher says that this decision was because of her race—that had she not been white, she would have been admitted. She sued the university, saying that because the admissions policy takes race into account, it is unconstitutional.
So far, no court has agreed with Fisher’s argument. A US District Court, a three-judge panel of the Fifth Circuit Court, and the full Fifth Circuit Court have all decided the case in favor of the university. The Fifth Circuit ruled that the Texas system was acceptable under current law and precedent, because it considers each applicant as an individual, with race being just a part of who they are. It does not assign a specific number of extra “points” to students of certain races. It does not have quotas for accepting a certain number of applicants from particular races. In all, the circuit court found that the Texas policy was in keeping with the Supreme Court’s decision in Grutter. Now the Supreme Court will decide for itself whether the current policy violates its precedent—or whether to overturn that precedent and institute stricter rules about how race plays into university admissions.
Next week, I will look more at the case as it stands before the Supreme Court, including the dozens of amicus briefs filed on each side and the possible arguments of some of the key justices. You can also learn much more about the case by reading the documents and articles about it at SCOTUSblog.