Texas Diversity Tested as Court May Curb Affirmative Action

The University of Texas at Austin is one of the most ethnically diverse U.S. campuses. With whites, blacks, Hispanics and Asians weaving along sidewalks under the 307-foot UT Tower, a student can encounter classmates from three or four cultural backgrounds in a matter of seconds.

“I’m not sure if you can really get that anywhere else,” said senior Jesse Hernandez, whose high school in the Rio Grande Valley was 98 percent Hispanic.

Texas’s way of creating that diversity is now being challenged at the U.S. Supreme Court in a case that may rewrite the rules for affirmative-action programs used by almost every selective university in the country. The justices hear arguments Oct. 10 on a lawsuit by a rejected white applicant who says she was the victim of discrimination. The court’s new makeup since its last admissions case in 2003 has heightened the prospect of a decision rolling back affirmative action.

At the core of the debate is whether universities can adequately diversify without resorting to racial preferences. Texas admits three-quarters of its freshman class each year on the basis of high school class rank -- the “top 10 percent rule.” That system ensures a significant number of minorities because it guarantees slots to students at predominantly Hispanic and black schools.

The university considers race only in admitting the rest of the class. Opponents of preferences say that’s unnecessary, given the success of the class-rank method. Texas counters that even with race-based admissions, a high percentage of its classes have few if any black and Hispanic students.

‘Alternative Ways’

Should the high court side with opponents, the ruling could set up Texas’s class-rank system as a model for other universities, forcing many to give up preferences.

“If Texas’s use of race is struck down, then universities across the country will need to find alternative ways to produce racial diversity,” said Richard Kahlenberg, a senior fellow at the Century Foundation, a Washington research group, who focuses on education issues. “That could mean attention to economic status, or percentage plans or eliminating legacy preferences.”

The Supreme Court narrowly upheld affirmative action in its 2003 Grutter v. Bollinger decision. A 5-4 majority reaffirmed the landmark 1978 Bakke ruling, saying colleges and graduate schools could consider the race of applicants as an admissions factor to help ensure a diverse campus.

Changed Makeup

Yet the court’s makeup has since changed, with Justice Samuel Alito, a skeptic of preferences, replacing Justice Sandra Day O’Connor, the author of the Grutter decision. The court’s new composition has fostered predictions that the justices will limit or even overturn the 2003 ruling.

“These shifts in personnel sometimes have enormous consequences,” said Pamela Harris, a former Justice Department official in the Obama administration and now a visiting professor at Georgetown University Law Center in Washington. “I think this is a case where we will see that.”

Texas’s hybrid admissions system is the product of a 1997 state law, which accounts for 75 percent of the university’s entering class each year. In practice, the ranking cutoff varies from year to year because of space constraints, and students applying next year will have to be in the top 8 percent of their class to gain automatic admission.

The racially segregated nature of the state’s high schools means the law guarantees admission to thousands of black and Hispanic students. Of the 9,383 students admitted as freshmen last year through the class-rank system, 29 percent were Hispanic and 6 percent were black.

Not Enough

Texas officials say that isn’t enough. In a 2004 study, the university concluded that almost 90 percent of undergraduate classes with enrollment of 10 to 24 had either no black students or only one. Almost 40 percent had zero or one Hispanic.

The state is 38 percent Hispanic and 12 percent black.

The top 10 percent law “helped, but it did not get us to the endpoint,” said William Powers, the university’s president, in an interview in his office on campus. “Hispanic students and African-American students are still underrepresented on what we think a diverse campus ought to be like.”

For the rest of the freshman class, Texas considers race directly. Much like the University of Michigan Law School, whose policy was at issue in the Grutter case, Texas uses a holistic review process for those applications, considering race along with grades, test scores, extracurricular activities and essays.

Richer Learning

Texas officials say that process creates a richer learning environment than class rankings would produce alone. Although people admitted through holistic review are predominantly white, the group also includes relatively wealthy black and Hispanic students who attend integrated high schools and finish just outside the top 10 percent.

“If one of the goals of having a diverse learning environment is to break down stereotypes and increase cross- racial understanding, then having the full range of that intragroup diversity is very important,” said Greg Vincent, the university’s vice president of diversity.

All told, the entering class for the fall of 2011 was 21 percent Hispanic, 5 percent black, 18 percent Asian and 48 percent white. That suggests the holistic approach doesn’t necessarily increase the overall percentages of Hispanic and black students.

A federal appeals court upheld the Texas admission system, saying it squared with the admissions policy upheld in Grutter. The Obama administration is joining the university in backing the continued use of race.

Passed Over

The justices will weigh arguments from Abigail Noel Fisher, who applied unsuccessfully to the school in 2008. Fisher later enrolled at Louisiana State University, where she graduated with a degree in business this year.

Fisher, who attended a public high school in the Houston suburbs, says she was passed over by UT in favor of classmates with lower grades and fewer activities.

“The only other difference between us was the color of our skin,” she said in a video released by her lawyers.

Her lawyers said in court papers that any additional diversity Texas achieves from using race in the holistic process doesn’t warrant the “extreme measure of racial classifications.”

One of the people behind Fisher’s suit, Edward Blum, in an interview pointed to the example of Texas A&M, a rival university that is bound by the top 10 percent law and doesn’t use racial preferences. Texas A&M’s entering class last year was 19 percent Hispanic and 3 percent black.

State Demographics

“The level of diversity UT has achieved is just slightly more than the level of diversity that A&M has achieved without resorting to racial preferences,” said Blum, director of the Project on Fair Representation in Alexandria, Virginia.

California and Florida also have adopted class-rank plans for state universities. In neither state do public universities also use race-conscious admissions.

Fisher’s lawyers contend that Texas’s true goal is to mirror the demographics of the state, something the Supreme Court has said is impermissible. Texas officials say they aren’t seeking to replicate the state’s population.

In Grutter, the majority voiced skepticism that percentage plans were an adequate substitute for race-conscious admissions. O’Connor questioned whether those plans could work at the graduate-school level.

Individual Assessments

“Even assuming such plans are race-neutral, they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university,” the justice wrote.

O’Connor’s 2006 retirement means Justice Anthony Kennedy, who dissented in the 2003 case, probably will cast the deciding vote.

Justice Elena Kagan isn’t taking part in the case. She was the Obama administration’s top courtroom lawyer when the administration filed a brief at the appeals court level.

Texas didn’t admit blacks until 1950, and its 350-acre Austin campus bears signs of that checkered racial history. Statues of Confederate Civil War figures, including Robert E. Lee and Jefferson Davis, still stand on the school’s South Mall. In more recent years, the university has added statues to honor civil rights leaders, including Martin Luther King Jr. and Barbara Jordan, a Texan who was the first Southern black woman elected to the U.S. House of Representatives.

Mixed Views

Student views about the case are likewise mixed. Jordan Grenadier, a white senior who is executive director of the campus chapter of the Young Conservatives of Texas, says she would like to see Texas abolish both the top 10 percent program and racial preferences, which she called “reverse racism.”

“It all plays into fairness,” she said.

Danielle Milton, a black sophomore from Houston, says she can understand why Abigail Fisher would be upset by her rejection. At the same time, Milton says she appreciates having other black students as classmates.

“You want to walk into a classroom and at least sometimes see someone who looks like yourself,” said Milton, who fell just outside the top 10 percent of her private high school

Most students interviewed said they value the diversity they find at Texas, even if some of them see race-based admissions as an imperfect means to achieve it.

“It brings cultural awareness to the UT community,” said Garrett Miller, a white sophomore beginning his first year in Austin after transferring from predominantly white Texas Christian University. “It’s something UT can be proud of.”

The court will rule by June in the case, Fisher v. University of Texas at Austin, 11-345.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net

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