March 12, 2012

SUPREME COURT TO REVIEW FISHER V. UNIVERSITY OF TEXAS – ANOTHER TEST OF GRUTTER V. BOLLINGER (2003)

by Art Gutman Ph.D., Professor, Florida Institute of Technology

The challenge in this case is to the use of race as a factor in undergraduate admissions at the University of Texas at Austin (UTA) by two rejected white females. The District Court of the Southern District of Texas granted summary judgment for UTA on 1/19/10 [2010 U.S. Dist. LEXIS 3478] and a three-judge panel of the 5th Circuit affirmed the summary judgment on 1/18/11 [631 F.3d 213]. Subsequently, a 16-judge panel of the 5th Circuit denied an en banc hearing in a narrow 9 to 7 vote on 6/17/11 [644 F.3d 301] and the Supreme Court granted certiorari on 2/21/12.

Here are the facts of the case.

In 1997, the Texas Legislature instituted a “Top Ten Percent Law” mandating that Texas high school seniors be automatically admitted to any Texas state university if they are in the top 10% of their class. This is a race-neutral policy, and it increased the percentage of blacks and Hispanics in the freshman class (as hoped and expected). However, after the ruling in Grutter v. Bollinger (2003), UTA commissioned two studies to determine if they had a “critical mass” of underrepresented minority students, a concept supported in the Grutter ruling. The first study examined minority representation in classes of “participatory size”, defined as classes between 5 and 24 students. The data (for 2002) revealed that 90% of these classes had one or zero black students, 46% had one or zero Asian-American students, and 43% had one or zero Hispanic students. A subsequent analysis that excluded the smallest classes found that 89% had one or zero black students, 41% had one or zero Asian-American students, and 37% had one or zero Hispanic students. In the second study, which surveyed students on their views of diversity on campus and in the classroom, minority students reported they felt isolated, and a majority of all students believed there was insufficient minority representation in the classrooms for “the full benefits of diversity to occur.”

Citing these studies as evidence of a failure to achieve a “critical mass” of minority students in accordance with Grutter, UTA, in a 2004 proposal, recommended adding race as an additional factor in a larger (somewhat complex) admissions scoring index. More specifically, applicants are divided into three pools: (1) Texas residents, (2) domestic non-Texas residents, and (3) international students, and students compete for admission only in their respective pools. Texas residents are allotted 90% of available seats based on a two-tiered system in which (1) the 10% law if applied first, and remaining seats are filled based on Academic and Personal Achievement indexes. Admissions for domestic non-Texas residents and international students are based entirely on the Academic Index (AI) and the Personal Achievement Index (PAI).

The Academic Index (AI) uses standardized test scores and high school class rank. For those not in the top 10%, it is possible to be admitted based on the on AI score alone. Those with low AI scores are “presumptively declined.” However, a member of the senior admissions staff reviews these files, and on some occasions, the presumptively declined applicant may receive a full review. The Personal Achievement Index (PAI) is based on three scores, one each for two required essays, and a Personal Achievement Score (not to be confused with the PAI) based on evaluation of the applicant’s full file. Each of these three components is rated on a scale of 1 to 6. Critically, the only place where race is considered is as one element of the Personal Achievement Score, and only if the AI scores are sufficient high and the essays are well written. In short, the vast majority of students are admitted based on the 10% rule and the AI score, and only a small percentage of students (with sufficiently high AI scores and well-written essays) may have race treated as a factor for admission.

Interestingly, the appellants never alleged that UTA’s admissions policy is different from or gives greater consideration to race than the policy upheld in Grutter, but rather, questioned whether UTA needs a Grutter-like policy. More specifically, they raised three challenges: (1) that UTA “has gone beyond a mere interest in diversity for education’s sake and instead pursues a racial composition that mirrors that of the state of Texas as a whole, amounting to an unconstitutional attempt to achieve racial balancing.”; (2) that it “has not given adequate consideration to available race-neutral alternatives” and (3) and that “minority enrollment under the Top Ten Percent Law already surpassed critical mass.” Each argument was rejected.

Interestingly, although the three-judge panel ruling was unanimous, two of the three judges had problems with the ruling (written by Judge Higginbotham). For his part, Judge King agreed with Higginbotham on how Grutter was applied, but bemoaned that fact that the appellants did not challenge the “validity or the wisdom” of 10% law. For his part, Judge Garza opined the Grutter was a “misstep”, but nevertheless agreed with Higginbotham’s view that the UTA plan was consistent with the Grutter ruling.

Also of interest, Justice Kagan has recused herself (probably because she worked on it when she was Solicitor General), so only eight justices will hear the case. Either way, five votes are still needed to reverse the 5th Circuit. Given past rulings, there is little doubt that four justices will vote to reverse (Alito, Robers, Scalia & Thomas) and three will vote to uphold (Breyer, Ginsberg & Sotomayor), leaving Justice Kennedy as the decisive vote. Some bloggers have noted that Kennedy was a dissenter in Grutter, and voted against the specific school plans in Parents v. Seattle School District (2007), implying that now that Justice O’Connor (who wrote the Grutter ruling) has left the Supreme Court, that Grutter was a unique ruling that will never again be applied.

Maybe. Kennedy is on record as believing that diversity is a compelling government interest. Moreover, in Grutter, Kennedy agreed with Justice Powell’s ruling in Regents v. Bakke (1978), but didn’t think the Grutter plan met that threshold. He made the same ruling in Parents, but he also provided several suggestions on how those plans could be narrowly tailored to meet the compelling interest of diversity. As for my own view, I will go out on a limb and opine that UTA plan satisfies the Harvard Plan advocated by Justice Powell in Bakke. Indeed, it is not nearly as race conscious. In Bakke, Powell offered the so-called “plus” system (where race is one of many plusses) for 14 out of 100 applicants to medical school. Here, the plus is applicable to a much smaller percentage of the applicants.

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