Editor’s note: This is the first installment in a two-part Q&A with UT President William Powers Jr., former dean of the School of Law, about the Fisher v. UT case, which the U.S. Supreme Court will hear on Oct. 10. The high court’s decision could influence the use of race by college admissions officials nationwide. The interview has been condensed and edited for clarity.
Daily Texan: Will you attend the arguments at the Supreme Court on Oct. 10?
William Powers Jr.: Yes.
DT: Is Fisher v. UT accurately described as an ‘affirmative action’ case or should a distinction be made?
WP: Well, that term gets used in a lot of ways. We look at a whole variety of criteria. Certainly, how well the person did in high school, and in what areas they did well. It’s not just about grade point average; maybe they did fabulously but they had that one bad semester sophomore year. How did they do in high school? What kinds of leadership roles did they take? Were they the student body president? Were they the editor of the newspaper? Were they the captain of the track team? Did they start a campus-wide program of some sort? They don’t dominate by any sense, but we look at [an applicant’s] test scores. We look at what kind of background they come from. We want a class that makes the whole campus work, and that involves looking for diversity. We’re looking for geographic diversity, we’re looking for students who are first-generation students, we’re looking for economic diversity. But in that mix this case is about: Can ethnicity be one of those factors? That’s what the case is about. There’s some people who say ‘Yes’ and there’s some people who want to say ‘No’.
DT: One of the common misconceptions you encounter when discussing Fisher v. UT with people who are unfamiliar with it is [them saying]: “Oh, UT doesn’t use race” or “UT doesn’t use affirmative action.” This case gets labeled as an affirmative action case. Do you think affirmative action is an accurate descriptor?
WP: Yes, in the holistic review, it is accurate to say race is one of many factors we take into account. The reason is other labels that get put on it — we take race into account, ethnicity into account, as one factor for every student. Anglo students, Asian students, Hispanic students, African-American students. Just take for example if there’s a non-minority student in a predominantly minority high school who has shown the ability to work across cultural lines. We look at that for every student.
DT: Would you explain UT’s admission process in the holistic sense as an affirmative action policy?
WP: It is what people would commonly call affirmative action. It is a race-conscious admissions policy.
DT: Is the admissions office going to postpone admissions decisions about the 2013-2014 applicants until after the high court issues a decision?
DT: If the University loses, will the first class be exclusively Top Ten Percent applicants? What will happen if [UT] loses?
WP: Part of that depends on the court’s decision and part of that depends on the timing. If, for example, the court decided [the case] in June — courts very often say that because certain things have already happened — this [the ruling] goes into effect at some later time. We don’t know what the Court’s going to say. We certainly hope the Court affirms our policies. We think they’re narrowly tailored and good policies and they fall under the Grutter decision [a 2003 landmark case that upheld affirmative action at the University of Michigan Law School]. … We will certainly follow the law, but we don’t know when it would go into effect.
DT: If the court says you can’t use race as a factor, is there some kind of mechanism in the current [Top Ten Percent] law that [dictates] what percentage of the incoming class [comes from the] top ten percent?
WP: The law was every student in the top ten percent is automatically admitted. That got modified to be that we have to set a top such-and-such percent, so that we get 75 percent of our Texas class that way, and a quarter of the class is accepted through holistic review. If a decision comes down that forbids the use of ethnicity in our holistic process, that amendment goes away and we go back to admitting everybody in the top ten percent automatically.
DT: So, mathematically, does that mean the class that is first affected by the Supreme Court’s decision under that hypothetical would be exclusively top ten percent?
WP: Well, we would have already admitted people by then.
DT: Okay but the next class? The class that is to be admitted?
WP: Unless something was done in the legislature.
DT: You’ll have already admitted the incoming 2013-2014 class probably, I mean by May.
WP: The argument is in October. Typically a decision would come down sometime in the spring but we don’t know that. A lot of this would depend on when the decision came down.
DT: But if the decision came out in the spring, you’ll have already admitted the incoming 2013 students, and then if nothing’s done in the Legislature, the ruling would affect the 2014-2015 class?
DT: Frequently cited by Abigail Fisher supporters are the high dollar amounts UT pays outside counsel. What are those amounts and how are they justified?
WP: One, I don’t know what they are. They’re not insubstantial. She sued us; we’re defending the lawsuit. We didn’t choose to go to court over this. So if we get sued on it we’re going to defend our policy. It is a critical policy, not just for UT-Austin but for higher education within the country, and it seems odd that somebody would sue us and criticize us for defending the lawsuit.
DT: How often do you use outside counsel, would you say?
WP: There are some areas where we have some expertise, but they’re very technical areas and we use outside counsel from time to time. One would be in the intellectual property area, with copyright and stuff like that. Sometimes in litigation, if it’s in a particular area, we need outside counsel to help. Let me say that it is actually an efficiency-producing technique. If we hired full-time on our staff all of the lawyers in all of the areas, that would have an ongoing wage cost that would far outstrip occasionally using outside counsel. We also use [UT] System counsel, we use the [Office of the Texas] Attorney General, so we always try to use the most appropriate counsel possible for the particular legal issue. This is a legal issue that the counsel we selected — they dealt with Grutter, they didn’t have to come up to speed, they know the issues. This was an absolutely appropriate use of outside counsel.
DT: Is there a potential UT-favorable decision that will nonetheless alter the way students are admitted to the university?
WP: The Court could say, “UT, we set down the law in Grutter and UT is following Grutter and we affirm the court of appeals,” in which case it won’t have a legal impact. They could say you can’t take race into account, or they could say yes, we affirm Grutter, but there’s one little thing that’s part of your process that doesn’t follow Grutter. We have to wait to see what the opinion is before we could answer that.