Blog: The Educated Reporter

What You Should Know About the Supreme Court Affirmative Action Case

This week the U.S. Supreme Court will hear a case that could dramatically change the way public universities admit applicants, challenging higher education’s ability to select students in part based on race.

The case involves a student denied admission to the University of Texas-Austin who alleges the school rejected her in its admissions process because it prioritizes entry for students who are members of racial minority groups. The petitioner, Abigail Fisher, who is white, maintains her high school transcripts made her more qualified than many of the minority students Texas accepted (see a breakdown of her grades and SAT score near the bottom).

The case asks the court to consider whether UT-Austin’s use of race-based admissions violates the equal protection clause of the Fourteenth Amendment, but legal scholars say the unique features of UT’s admissions standards make predicting the eventual ruling particularly difficult.

Moreover, the legal teams likely will draw extensively from demographic changes at the university, and other major public institutions, to deliberate whether the racial preference aspect of UT’s admission policy is necessary to promote diversity. Much of those demographic changes will be filtered through key dates going back 17 years.

Historical Context

Until 1996, Texas used race as a factor in its university admissions decisions. That year, the 5th circuit court struck down that approach in Hopwood v. Texas, causing the Texas Legislature to institute a workaround admissions policy that would not defy the federal court’s ruling. In 1997, Texas schools admitted students on a race-neutral basis, leading to sharp drops in black and Hispanic enrollment. In 1998, the legislature’s workaround plan went into effect: Known as the “10 percent” rule, students who finish in the 90th percentile of their high school are automatically admitted to select public Texas universities, including the state’s flagship school at Austin. In recent years, roughly 80 percent of UT-Austin’s freshman class has been comprised of such students. Last year, however, a 2009 state law went into effect that allowed UT-Austin specifically to cap the number of 10-percent students to 75 percent of its enrollment. Other major state universities like Texas A&M have announced they will not follow the flagship institution’s lead.

[See EWA's webinar on this case, with analysis from Scott Jaschik of Inside Higher Ed and Mark Walsh of Education Week]

The 10-percent rule was seen as effective because of the large number of schools with a high concentration of one racial group. (See the adjacent tables for racial changes over time in Texas.) After a U.S. Supreme Court case in 2003 involving the University of Michigan narrowly supported the use of race-based admissions, the Texas Board of Regents reinstituted the use of race as a factor in admissions decisions for the state’s public universities. That case, Grutter v. Bollinger, led the court’s majority to agree, “student body diversity is a compelling state interest that can justify the use of race in university admissions.” The first freshman class in Texas to consider race since Hopwood was 2005-6.

How Race Factors in

The remaining slots after the 75 percent admitted via the 10-percent policy are allotted through a variegated set of standards, which include high school achievement, test scores, entrance essays, and other factors. In a brief submitted to the Supreme Court, UT-Austin’s legal team notes admissions officials use a detailed matrix to judge each candidate, but the names or race of the applicant are not revealed. Race comes in later, and according to Texas, is one of seven factors within two other factors. (The brief describes the breakdown as “a factor of a factor of a factor of a factor.”) Not all students ranked near the top of their class get in through the 10-percent rule; various private schools in the state do not rank their students by class standing. Still, the UT team admits in the brief, “race is a meaningful factor and can make the difference in the evaluation of a student’s application.” 

Legal observers note the UT brief stressed the veiled approach to an applicant’s race during the admissions office to curry favor with Justice Anthony Kennedy, a possible swing vote in the case. The last time race-based admissions was considered by the court in Grutter v. Bollinger, Kennedy wrote a dissenting opinion in which he expressed concern about a university’s use of race beyond a “last resort” to diversify its pool of admitted students. Specifically, he wrote the university used race to “achieve numerical goals indistinguishable from quotas”—the latter of which was previously struck down. During the 2003 case, it was revealed Michigan’s admissions officers sent daily reports that contained detailed data on the racial composition of the pool of admitted students. The Texas legal team stresses UT’s system eschews that process.

Court Politics

However, the deciding vote in the 2003 case was Justice Sandra Day O’Connor, who wrote the majority opinion; since then, she was replaced by Justice Samuel Alito, who in 2007 voted with the majority that the constitution requires public laws to be race-blind in Parents Involved in Community Schools v. Seattle School District No. 1. And while Texas has shown its system does not rely on quotas, Justice Kennedy may feel the 10-percent rule sufficiently promotes racial diversity, making the added racial component superfluous.

Scores of amicus briefs have been filed potentially aiming to sway to Kennedy in favor of race-based admissions in recent weeks. In fact, many court followers say this is one of the most amicus brief-laden cases in Supreme Court history. While the court has changed dramatically since 2003 with six new justices, the upcoming trial will differ from Grutter in one other way: Elena Kagan, an Obama appointee, has recused herself from the case. In the event of a four-four split, the decision of the 5th Circuit court that ruled in favor of UT Austin back in early 2011 will stand.

Several legal scholars have proffered the possibility the court will decide it lacks jurisdiction to hear the case because Fisher has already graduated from Louisiana State University. Unlike previous affirmative action cases, Fisher has no claim to an “injunction or a declaratory judgment.”

Fisher’s Grades

Abigail Fisher’s grades are also likely to be scrutinized. In a brief filed by UT Austin, the school notes Fisher had a cumulative GPA of 3.59 and an SAT score of 1180 out 1600, figures not deemed sufficiently competitive. Nor was she accepted into the summer program that granted some students admission into the university. Five black and Hispanic applicants with lower academic ratings were admitted, as were 42 white applicants with lower scores than Fisher. Among the black and Hispanic applicants with higher academic scores than Fisher, 168 were not admitted. In 2008, the average SAT score for incoming UT Austin students who finished in the top decile of their class was 1219; for other students it was 1285. 

Photo source: Flickr/Mark Fischer