Texas College Admissions Can Be Race-Conscious

(CN) - The University of Texas at Austin had the right to consider the race of undergraduate applicants when it rejected two prospective students for admission in the fall of 2008, the 5th Circuit affirmed on Tuesday.

Under Texas' Top 10 Percent Law, which was enacted in 1997 to boost minority enrollment, local high school students in the top 10 percent of their senior class have received automatic admission to state universities. In 2004, after an assessment of its minority representation, U.T. began including race as a factor when considering those Texas applicants not eligible for admission under the Top 10 Percent Law.

If a student is ineligible to a Texas state school under the Top 10 Percent Law and does not qualify by academic variables alone, consideration is given to the submitted essays and a personal achievement score that considers seven "special circumstances," including race and socioeconomic status.

U.T. adopted the race-conscious undergraduate admissions program with attention to the 2003 Supreme Court ruling Grutter v. Bollinger, regarding the admissions process at the University of Michigan Law School.

Abigail Fisher and Rachel Michalewicz, who were denied admission to the university in fall 2008, challenged the constitutionality of U.T.'s admissions process. They claimed the race-conscious program was discriminatory and violated the 14th Amendment, but they did not challenge the Top 10 Percent Law.

A federal judge in Texas had dismissed the lawsuit, and the New Orleans-based federal appeals panel affirmed on Tuesday.

"Recognizing the pursuit of diversity, including racial diversity, to be a compelling interest in higher education, Grutter endorsed the right of public universities to increase enrollment of underrepresented minorities," Judge Patrick Higginbotham wrote in the court's 54-page majority opinion. "Grutter also cautioned that, while it accepted diversity as a compelling interest, any sorting of persons on the basis of race must be by measures narrowly tailored to the interest at stake."

The judge added that the U.T. policy adheres to the Supreme Court ruling since race is one of many considerations in the admissions process.

Accepting all Texas students in the top 10 percent of their grades has had a concerning effect on national enrollment among state universities, the ruling continues.

In 1998, when the 10 percent law came into effect, only 41 percent of the seats reserved for Texas residents were claimed by students who were guaranteed admission. That number jumped to 88 percent 10 years later.

"While the Top 10 Percent Law appears to succeed in its central purpose of increasing minority enrollment, it comes at a high cost and is at best a blunt tool for securing the educational benefits that diversity is intended to achieve," Higginbotham wrote.

He added that the U.T. undergraduate admissions process does not focus on meeting a quota.

"U.T. has never established a specific number, percentage, or range of minority enrollment that would constitute a 'critical mass,' nor does it award any fixed number of points to minority students in a way that impermissibly values race for its own sake," Higginbotham wrote.

The other two judges on the panel each issued separate concurring opinions.

Judge Carolyn Dineen King wrote just a paragraph, stating that she agreed with Higginbotham's "analysis and application of Grutter," but would not join the ruling's discussion of the Top 10 Percent Law since its legality had not been called into question.

Judge Emilio Garza wrote a 31-page opinion, begrudgingly concurring with the court's adherence to, what he called, a Supreme Court "misstep."

"I concur in the majority opinion, because, despite my belief that Grutter represents a digression in the course of constitutional law, today's opinion is a faithful, if unfortunate, application of that misstep," Garza wrote. "Grutter's failing, in my view, is not only that it approved an affirmative action plan incapable of strict scrutiny, but more importantly, that it approved the use of race in university admissions as a compelling state interest at all."

Apellants Abigail Fisher and Rachel Michalewicz moved on to other institutions, opting not to seek admittance as transfer students to U.T.

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