Lino Graglia

In response to the Supreme Court’s decision in Fisher v. University of Texas earlier this year, officials from the Obama administration affirmed the validity of using race as a factor in determining university admissions in a letter addressed to university presidents across the country on Friday.

 

Following the Supreme Court’s ruling in the Fisher case, officials from the Education and Justice departments said colleges and universities within the United States can continue to use race as a factor in their admission policies only if it is necessary for achieving diversity.

 

“The Court preserved the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body and can lawfully pursue that interest in their admissions programs,” the letter said.

 

In June, the Supreme Court ruled that the Fifth Circuit Court did not apply strict scrutiny to UT’s admission policy, which does use race as a factor, and sent the case back to the appeals court. The Court’s decision in the 2003 Grutter v. Bollinger case allowed universities and colleges in the United States to use race as a factor, only if no other race-neutral means of achieving diversity goals were viable.

 

UT law professor Lino Graglia, who specializes in racial discrimination and affirmative action among other topics, said the Obama administration sent the letter because the Fisher decision has opened the door for admissions policies to be further scrutinized.

 

“The Grutter case said that diversity is a compelling interest. What the Fisher case did is cast some skepticism on that,” Graglia said. “They haven’t disallowed racial preferences [in university admissions], but they certainly invited litigation.”

 

In an email to The Daily Texan last week, Edward Blum, director of the Project for Fair Representation, said in sending the case back to the Fifth Circuit, the Supreme Court ruled in plaintiff Abigail Fisher’s favor. His organization has represented Fisher during the case’s progression through the legal system.

 

“Abby Fisher never asked the Court to overturn Grutter. We only asked that Grutter be applied properly by UT,” Blum wrote in his email. “The Court agreed with us 7-1. We won; UT lost; the Fifth Circuit was wrong in their decision and analysis and the justices vacated the opinion.”

 

Fisher sued the University in 2008 after she was denied admission into the University. Fisher, who has since graduated from Louisiana State University, claimed UT violated her right to equal protection because its admissions policy considers race as a factor for students who do not automatically qualify under the Top 10 Percent Law.

 

Although the Supreme Court sent the case to a lower court so UT’s admissions policy might be looked at more closely, Graglia said the Fisher decision did not overturn the Grutter ruling.

 

“The Fisher decision does not go as far as the opponents of affirmative action want,” Graglia said. “That is, it doesn’t say that considering race in admissions is unconstitutional.”

 

UT spokesman Gary Susswein did not comment on the letter but said the University is confident in its admissions policy.

 

The Fifth Circuit Court is scheduled to hear the Fisher case again on Nov. 13.

In response to the U.S. Supreme Court’s decision in Fisher v. University of Texas at Austin earlier this year, officials from the Obama administration affirmed the use of race as a factor in determining university admissions.

In a letter addressed to university presidents across the country, representatives of the U.S. Department of Education and the U.S. Department of Justice said on Friday that their departments strongly support diversity in higher education. 

“The Court preserved the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body and can lawfully pursue that interest in their admissions programs,” officials said in the letter.

With the Fisher decision, the officials from the education and justice departments said colleges and universities in the U.S. can continue to use race as a factor in their admissions policies if it is necessary for diversity on campus. Representatives also released a document detailing answers to prominent questions about the decision’s impact on admissions.

In June, the Supreme Court ruled the Fifth Circuit Court did not apply strict scrutiny to UT’s admission policy and sent the case back to the appeals court. 

Law professor Lino Graglia said the Obama administration sent the letter because the Fisher decision has opened the door for college admissions policies to be further scrutinized. Graglia mentioned the 2003 Grutter v. Bollinger case, which allowed universities and colleges in the U.S. to use race as a factor, but required there be no other race-neutral means of achieving diversity goals.

“The Grutter case said that diversity is a compelling interest,” Graglia said. “What the Fisher case did is cast some skepticism on that. They haven’t disallowed racial preferences [in university admissions], but they certainly invited litigation.”

The Fifth Circuit Court is scheduled to hear the Fisher case again on Nov. 13.

The University’s race-conscious admissions process will enter the center of a national debate over affirmative action Wednesday as the Supreme Court prepares to hear the case Fisher v. Texas.

The court will hear oral arguments from the University and from attorneys representing Abigail Fisher, a white student who was denied admission to UT in 2008. Fisher sued UT claiming the University violated her right to equal protection under the 14th Amendment because the University included race as a factor in her application.

UT says race-conscious admissions are necessary to create meaningful diversity, but Fisher argues the University racially discriminated against her because its policies favor underrepresented groups. The court will rule on whether her claim is constitutional in 2013.

At UT only 25 percent of students are admitted under the same process as Fisher. Around 75 percent of students are admitted through the race-neutral Top Ten Percent Rule, which automatically admits high-ranking graduating seniors at Texas high schools.

It is likely the court will be reexamining the principle of using race to increase diversity, not just whether UT’s admissions policy is constitutional, said James Harrington, an adjunct constitutional law professor and director of the Texas Civil Rights Project.

Lower percentages of black and Hispanic students have been admitted through race-conscious admissions than through the Top Ten Percent Rule in every year since 2007, UT records show.

The key element of the decision will be if race can be used to “level the playing field of opportunity” to increase diversity in underrepresented groups, Harrington said.

“There is one view that says every individual must be treated equally, and there is another remedial view that says the purpose of equal protection is to allow people to be where they ought to be and level the playing field of opportunity,” Harrington said. “The current composition of the court sees the first view.”

Merits of Diversity

More than 70 organizations have filed briefs supporting UT’s admissions policy arguing that colleges have a compelling interest to use race-conscious admissions to create racial diversity.

When the U.S. Fifth Circuit Court of Appeals ruled race could not be used in admissions between 1996 and 2003, Hispanic and black student representation dropped, according to UT’s brief. The Supreme Court overturned this decision in the 2003 case Grutter v. Bollinger, and UT began using race in admissions again for applications in 2004.

A racially diverse education is necessary to prepare students for diverse work environments they encounter after graduation, said Melissa Hart, author of a brief filed on behalf of UT by the Council for Minority Affairs at Texas A&M University.

“Studies have shown that everyone, regardless of their race or gender, learns more effective critical thinking and leadership skills if they learn in a classroom that has a racial diversity of students,” Hart said.

Debo Adegbile, acting president of the NAACP Legal Defense and Educational Fund, said in a conference call last week that there is “overwhelming evidence” that affirmative action helps create a space where racial stereotypes are challenged.

Adegbile, a soccer player in college, related a personal story about his experiences with a teammate who called him a “fuzzy foreigner” after practice early during his freshman year.

“We didn’t have to end our relationship in the way that it began that day,” Adegbile said. “He began with a preconception and he was able to replace it by meeting a person with difference.”

“The Mismatch Effect”

Fisher’s attorneys argue race-conscious admissions discriminate against Asian and white students who do not face the same application standards as Hispanic or black students, violating the 14th Amendment’s requirement for equal protection.

Lino Graglia, a constitutional law professor, said race-conscious admissions harm black students because affirmative action policies allow them to enter schools where they are “typically less qualified” than other applicants and less likely to succeed.

“It seems to be pretty well understood today that the result of race preference in higher education is to hurt blacks,” Graglia said. “What you are doing here is taking black students out of schools they are fully qualified for and putting them in a more selective college where they are almost guaranteed to graduate in the bottom of their class.”

At UT, blacks and Hispanics have lower four-year graduation rates than whites and Asians, UT records show.

Graglia called this scenario the “mismatch effect.” Fisher’s supporters cite “the mismatch effect” in reference to the University of California, which eliminated race as an admissions factor in 1996.

While black enrollment of the University of California at Los Angeles declined from 5.4 percent to 3.2 percent of the student body between 1998 and 2005, the four-year graduation rate of black students increased from 29.2 percent to 48.3 percent between 1998 and 2005.

Graglia said the stated aim of increasing diversity did not increase meaningful racial understanding that benefited different groups on college campuses.

The Texas Association of Scholars, of which Graglia is a member, is one of 17 groups that filed briefs on behalf of Fisher. The authors argue there is no quantifiable evidence that racial diversity eliminates stereotypes. Instead, they say it increases the chance that students will be regarded as “tokens” of their race.

Law and government professor Lucas Powe said the removal of race-conscious admissions would impact campus diversity, but said other tools that converge with racial factors might achieve some diversity through other means.

“There’s nothing more effective in getting race than using race,” Powe said. “But if you can’t, just look at what you can do with using race neutral tools like the Top Ten Percent Rule. If you’re interested in economic diversity, just pick zip codes from the poorest part of the states and get students from there.”

Fisher has not challenged the constitutionality of affirmative action policies relating to gender or socioeconomic status.

Taking Action

Social work and Spanish junior Samantha Robles and history senior Joshua Tang have organized a student campaign called We Support UT to publicly defend UT’s
admissions policy.

The group organized a teach-in to educate students about the case and held a town hall forum with attorneys from civil rights groups siding with the University.

“It’s not just UT’s fault, it’s also the fault of K-12 not preparing students for college,” Tang said. “A lot of our black and brown children are falling through the cracks. We know the problem, and then we have cases like Fisher where the very little that is being done is threatened.”

If the University’s policy is rejected, UT will appear unwelcoming to groups that are already less likely to attend UT and application rates will drop, said Choquette Hamilton, associate director for development of African and African diaspora studies.

“The negative press certainly impacts application behavior,” Hamilton said. “The reason is perception of access. If students feel their admissions prospects are low, they are going to say ‘why should I waste my time and money to apply?’”

A ruling in Fisher’s favor would harm efforts to attract students to UT through programs like Advise Texas and University Outreach Centers, Robles said. UT should seek other ways to increase racial diversity regardless of the ruling in the Fisher case, she said.

Wednesday’s hearing marks the start of the last phase in a case that began in 2008. The court’s ruling, likely to come in the spring, will determine the future of UT admissions policy and could have implications for affirmative action policies across the country.