On January 18, 2011, the U.S. Court of Appeals for the Fifth Circuit rejected a challenge to the University of Texas' ("UT's") affirmative action admission policies in which an applicant's race was one of many factors considered in the process. Applying the Supreme Court's reasoning in Grutter v. Bollinger, the Fifth Circuit held that a university can use race-conscious selection criteria to promote student body diversity as long as that goal is tied to the educational benefits that flow from a diverse student body.
The challengers were Texas residents who were denied admission to the class entering in 2008. They contended that UT's race-conscious admissions policies were unconstitutional because they went beyond promoting the educational benefits of diversity and sought to achieve a student body that was proportional to the of State of Texas' racial composition. This, they claimed, was an unconstitutional effort to achieve racial balance.
The challengers also argued that UT had not given adequate consideration to race-neutral alternatives. Their other argument was minorities had already achieved a "critical mass" under the Top Ten Percent law, making additional efforts to promote diversity unnecessary.
UT's admissions process divides applicants into three groups: Texas residents, domestic nonresidents, and international students. Students compete for admission against other students in their respective pools. Texas residents are allotted ninety percent of all available seats.
Under Texas' "Top Ten Percent" law, students in the top ten percent of their high schools' graduating classes are automatically admitted. Applicants who are not in the top ten percent compete for admission based on their Academic and Personal Achievement Indices. The academic index is based on SAT scores and grades. The personal index is based on a score awarded for of two required essays and a "personal achievement score" which represents a "holistic" evaluation of the applicant’s file.
Admissions staff determine the personal achievement score by evaluating an applicant’s leadership qualities, awards and honors, work experience, involvement in extracurricular activities and community service. The personal achievement score also includes a “special circumstances” component that considers the applicant's socioeconomic status, family status and family responsibilities. Other considerations include the applicant’s standardized test score compared to the average at her high school.
Race is considered is as one element of the personal achievement score, which is only an element of the total Personal Academic Index. Without a sufficiently high Academic Index and well-written essays, an applicant with the highest personal achievement score will still be denied admission.
The Fifth Circuit approved UT's admission program and held that, as long as a university considers race in a "holistic" and individualized manner, and not as part of a quota or racial balancing system, courts must defer to a university’s good faith determination that race-conscious measures are necessary to achieve the educational benefits derived from a diverse student body.
The Court found that UT adhered to Grutter's requirements when it considered race in a process that devoted special attention to minorities that were among the most underrepresented group in its student population. The Court concluded that UT did not violate its obligation to undertake a “serious, good faith consideration” of race neutral alternatives before resorting to race-conscious measures. The Court observed that UT's admissions procedures, which were based on the plan approved in Grutter, are more narrowly tailored than the admission program involved in Grutter because individualized consideration is given to all applicants throughout the selection process.
Fisher was a unanimous decision, but he judge who authored the lead opinion criticized Texas' Top Ten Percent law. He believed that the law does not perform well in the pursuit of the diversity that Grutter endorsed. The law's focus on geographic diversity leaves out other types of diversity that would be considered under Grutter. However, the entirety of UT's selection process and its decision to use a race-conscious selection process were adequately supported by the considerations that Grutter required.
The author of a concurring opinion stated his disagreement with the ruling in Grutter, but conceded that the Fifth Circuit was obligated to adhere to controlling Supreme Court precedent.
The Fisher decision is faithful to the reasoning in Grutter. However, it is not clear what will happen if this case reaches the Supreme Court. Sandra Day O'Connor, who authored the majority in Grutter has stepped down from the Court. The Roberts Court has displayed marked skepticism toward civil rights claims. In a 2007 school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, the majority struck down a race conscious plan designed to promote student body diversity in public schools. In that case, Chief Justice Roberts authored a plurality opinion in which he argued that race could never be a factor in governmental decision making.
In the 2009 New Haven Firefighters case, Ricci v. DeStefano, the majority struck down a decision that denied promotions to white firefighters who had higher test scores than minority test-takers because examination had excluded a disproportionate percentage of minority firefighters. The Court's decision ignored longstanding precedent interpreting Title VII of the Civil Rights Act. In a 2009 case, Northwest Austin Municipal Utility District No. 1 v. Holder, Chief Justice Roberts issued an opinion in which he made clear his belief that §5 of the Voting Rights Act is unconstitutional.
Some observers speculate that Roberts may be waiting for a case in which all forms of affirmative action could be declared unconstitutional. However, Justice Kennedy has not been unwilling to go that far. UT's admission plan addresses the concerns raised in Kennedy's dissent in Grutter since all applicants are given individualized consideration throughout the process. This may allay the concerns he raised in Grutter. If this case makes it to the Supreme Court, Kennedy will probably supply the key vote.
Leland Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware.He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.