A high school student from Fort Bend County - west of Houston - is suing the University of Texas at Austin for using race and ethnicity as factors in undergraduate admissions.
The lawsuit claims that by using racial and ethnic preferences in its admissions program, UT violates the 14th Amendment of the U.S. Constitution, a post-Civil War amendment initially intended to secure rights for former slaves requiring that states provide equal protection for people under the law.
The 18-year-old plaintiff, Abigail Noel Fisher, attends Stephen F. Austin High School in Sugar Land. At the time she applied to UT, she had a 5.1 grade point average out of a 6.0 scale, which is the equivalent of a 3.59 on a 4.0 scale, and was ranked approximately in the top 12 percent of her class, according to the complaint.
Fisher, who is white, is seeking preliminary and permanent responses to the complaint. The preliminary relief would require UT to re-evaluate her for admission to the undergraduate program at UT under race-neutral criteria and to admit her as long as she is qualified under the criteria. Permanent relief would come in the form of a ruling from the court that UT's admissions policies and procedures violate the U.S. Constitution and federal civil rights statutes, and the court could prohibit UT from using race as a factor in undergraduate student admissions decisions.
UT System Chancellor Mark Yudof, each of the members of the Board of Regents, UT System Vice Chancellor and General Counsel Barry Burgdorf, Executive Chancellor for Academic Affairs David Prior, UT President William Powers and Bruce Walker, vice provost and director of undergraduate admissions at UT, were all named as defendants in the case.
"This is a very important lawsuit at UT. Based on President Powers' recent comments showing dissatisfaction with the top 10 plan, this should generate a lot of interest," said Edward Blum, director of the Project on Fair Representation, a nonprofit legal defense fund that supports litigation challenging racial and ethnic classifications and preferences in state and federal courts.
Powers told the Texan in March that the University would be better served in diversifying its class if one-half of the students were admitted under the top 10 percent law and the other half through a traditional, holistic review.
Blum said this is a very complex case, with the litigation noting court decisions dating back to 1996.
In the 1996 case Hopwood v. Texas, the Fifth Circuit Court of Appeals in Texas ruled that all educational institutions in Texas were forbidden from considering race and ethnicity in their admissions processes. In response to this case, the Texas legislature passed the top 10 percent law, a race-neutral admissions program, which guarantees admission to any state university to all Texas high school students who graduate in the top 10 percent of their class.
In 2003, Hopwood v. Texas was overruled by the U.S. Supreme Court's decision in Grutter v. Bollinger, a case brought forth by the University of Michigan. The court ruled that the use of racial and ethnic preferences would be permitted in college admissions to expand diversity until 2028 as long as universities first tried race-neutral means of achieving diversity.
"Although the Supreme Court allows race-based affirmative action, it has spelled out very clearly that a college or university must first use race-neutral means before they sue affirmative actions to see if race-neutral means would increase diversity," Blum said.
He said UT may make the argument that it does use the top 10 percent law for the majority of its admissions, but Fisher's case will state that that is not a valid argument.
For the fall 2008 semester, 81 percent of freshman admits were accepted under the top 10 percent law and the rest were evaluated using other criteria, including test scores and racial and ethnic criteria.
"The 'Top-Ten Percent Plan' has produced more minorities in attendance than did race-based affirmative action," Blum said. "Not only has the University of Texas used race-neutral criteria, but those race-neutral criteria have proven to be more effective than race-based affirmative action. Therefore we believe UT-Austin must stop using race as a criteria in their admissions process."
UT-Austin Vice President for Legal Affairs Patricia Ohlendorf said in an official statement that UT will review the complaint with the UT System Office of General Counsel and the Office of the Attorney General.
"Each year we are very fortunate to receive applications from thousands of very able high school seniors, but as with many universities around the country, we are limited in the number of applicants we can admit," Ohlendorf said. "We believe that our undergraduate admissions policies are well-administered and in compliance with Supreme Court precedent and all other applicable law."
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