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The Texas Diversity Wars

Will the Supreme Court step in?

Oct 31, 2011, Vol. 17, No. 07 • By TERRY EASTLAND
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The policy for the undergraduate school is different from the others in a key respect, for it governs only a small portion of seats in a class. In 1997, concerned that Hopwood might result in fewer black and Hispanic students enrolling at Texas colleges and universities, the legislature enacted the Top Ten Percent Law, under which in-state high school students graduating in the top decile of their class are automatically admitted to the state college or university of their choice. The law has affected admissions since 1998. Over the years Top Ten students have taken more and more seats in the freshman classes at UT-Austin—81 percent of the seats, in fact, in the class of 2008 to which Fisher applied. The remaining seats are governed by the race-conscious admissions policy.

Fisher, not incidentally, finished just outside the top decile of her high school class. So when she applied for admission to the university in 2008, she was competing with 16,000 non-Top Ten students for 19 percent (1,216) of the seats in the class. Fisher also was applying to a class more than 20 percent of whose members were black and Hispanic, thanks in large part to the Top Ten Percent Law. The year before the law took effect, roughly 1,000 Texas high schools failed to send even one student to UT-Austin—the law is race-neutral but, sweeping through every high school as it does, it disproportionately benefits black and Hispanic students.

The Top Ten Percent Law and its impact upon undergraduate admissions could be a key issue in Fisher. In Grutter, O’Connor wrote that “narrow tailoring [requires] serious, good-faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.” She asked whether “percentage plans” such as those in Texas, Florida, and California would qualify as just such an alternative, a position the Bush administration advocated. Considering that argument in the context of an undergraduate school, O’Connor wrote that percentage plans “may preclude the university from conducting the individualized assessments necessary to assemble” a diverse student body.

If the Grutter Court was right about this—if the Top Ten Percent Law isn’t a “workable race-neutral alternative”—then Texas’s percentage plan is irrelevant to deciding whether the challenged policy is unconstitutional. But Fisher differs in a critical respect from Grutter: It is not a case about a university that is considering whether to adopt a percentage plan but a case about a university with a plan already in place. Granted, the Top Ten Percent Law authorizes not an ideal admissions policy. It takes into account only class rank and thus forecloses consideration of everything else, including SAT scores and school quality and curriculum. But the plan has contributed significantly to the growing numbers of black and Hispanic students that the university has enrolled since 1998. And the plan is race-neutral by its terms, something that cannot be said about the race-conscious policy under which non-Top Ten students apply.

Under that policy, the number of black and Hispanic students who are enrolled thanks to consideration of race is small, roughly 55, in the persuasive estimate of Fifth Circuit judge Emilio Garza, who concurred in the opinion by the three-judge panel upholding the policy, having concluded that the decision was “a faithful, if unfortunate, application” of Grutter. Dissenting from her court’s denial of Fisher’s request for rehearing the case, Fifth Circuit chief judge Edith Jones, joined by four of her colleagues, wrote that the “additional diversity contribution of the university’s race-conscious admissions program is tiny and far from ‘indispensable.’ ” The use of race, said Jones, is not “narrowly tailored” and for that reason the admissions policy is unconstitutional.

Another issue in the case is novel: whether “classroom diversity” is a compelling interest. The university says it is, citing surveys of undergraduate classes of “participatory size,” meaning those with 5 to 24 students, which found that very few contained a black or Hispanic student. Grutter did not go so far as to endorse classroom diversity as a compelling interest. But Texas has read Grutter as if it did. And so the university has pointed to classroom and campus-wide diversity in justifying the use of preferences in admissions in order to obtain a “critical mass” of black and Hispanic students.

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