When the U.S. Supreme Court hears the oral arguments in Fisher v. University of Texas at Austin, the justices will revisit two legal concepts that currently justify the use of race in public school admissions policy. Because those legal platforms in part make certain assumptions about student enrollment patterns and campus behavior, key data points will be presented to the justices by both sides in an effort to sway their opinions (bottom of page).

Compelling Interest

This is one of the two legal platforms the Fisher team is challenging. In the court decision that her legal team seeks to overturn, Grutter v. Bollinger, the Supreme Court ruled in 2003 the University of Michigan Law School had a compelling interest in using admissions practices that lead to campus diversity. There is legal precedent in using education as a vehicle to strengthen civil society going back to Brown v. Board of Education. In Regents of University of California v. Bakke (1978), the court struck down the use of quotas for race-based admissions, but upheld the use of race as a limiting factor in considering a student’s application. In that case, the majority wrote that a university, “has a legitimate and substantial interest in … eliminating … the disabling effects of identified discrimination.”

 Narrowly Tailored

The court over time has made clear promoting diversity is a compelling interest, but to what degree can schools prioritize an applicant’s racial or ethnic background? The narrowly tailored concept is more closely tied to the facts of the current case; in particular, the demographic changes at the University of Texas in Austin will be scrutinized to determine if the school’s adoption of a racial component was necessary in light of the “10-percent” rule, which offers automatic admission into Texas public universities to students who placed in the top decile of their graduating class.

The swing vote on the current court appears to be Justice Anthony Kennedy. Though he has voted in favor of litigants challenging race-based action from government institutions, on two of the decisions he penned a separate opinion that criticized the narrowly tailored aspects of the cases. In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the Roberts court ruled 5-4 the school district could not assign students to schools for the sake of expanding racial diversity. Kennedy submitted a concurring opinion in which he wrote, “In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition.” Despite that openness for considering race, Kennedy argued Seattle did not do enough to find alternate programs that could integrate the schools, such as, “a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component.” Similarly, in Grutter, he questioned Michigan’s efforts to clearly identify the limits the school places on its self in admitting students based on race. . 

The Data

Supporters of the University of Texas maintain the school’s system is narrowly tailored. Fisher’s team and legal scholars sympathetic to her suit believe the 10-percent rule has done enough to enroll a diverse mix of blacks, Hispanics, Asians, and Caucasians.

Fisher’s brief notes on two occasions Texas had lauded the 10-percent rule as establishing the same diversity levels that existed before the use of race as a factor was eliminated in 1998 (until returning in 2004 as a result of the Grutter case):  “This upward trend in minority enrollment continued in the years that followed. In 2003, UT declared that it had ‘effectively compensated for the loss of affirmative action.’ JA 346a. That year, UT ‘brought a higher number of freshman minority students—African Americans, Hispanics and Asian Americans—to the campus than were enrolled in 1996.’”

Still, there was a considerable increase in the number of public school black and Hispanic students entering the 12^th grade between 1996 and 2003. That growth is not reflected in the share of the student body at UT Austin, even if 1996 levels were mostly recovered, the schools backers say.

More broadly, seven states that educate more than one quarter of the country’s high school students follow race-neutral admissions policies at their public universities.

Key figures

Table 1

Diversity Still an Issue at the High School Level

• About 31% of Hispanic students are in schools with 90%+ Hispanic students. 41% are in schools with 80% or more Hispanic students. Almost 50% are in schools with at least 70% Hispanic students. — 2011
• About 26% of Hispanic students were in schools with 90%+ Hispanic students. Nearly 40% were in schools with 80% or more Hispanic students. About 48% were in schools with at least 70% Hispanic students. —  2002
• Only about 2% of black students are in schools with 90%+ black students. 6.8% are in schools with at least 80% black students. 11% are in schools with 70%+ black students. – 2011
• About 8.2% of black students were in schools with 90%+ black students. 12.4% were in schools with at least 80% black students. 17.6% were in schools with 70%+ black students. – 2002

Source: EWA analysis/Clare McCann, New America Foundation 

Photo source: Flickr/Larry Miller