By Peter Schmidt | Chronicle of Higher Education
January 18, 2011
A federal appeals court panel on Tuesday upheld the use of race-conscious admissions by the University of Texas at Austin. In doing so, the judges rejected the argument that the policy is unconstitutional because state lawmakers had created a viable, race-neutral alternative to it when they mandated that public universities in Texas admit students in the top 10th of their high-school classes.
Although the three-judge panel of the U.S. Court of Appeals for the Fifth Circuit was unanimous in ruling that the university's policy complies with guidelines for colleges set forth by the U.S, Supreme Court, the judges were deeply divided in their reasoning.
The majority opinion, written by Judge Patrick E. Higgenbotham, attacked the state's admission guarantee based on class rank, known as the "Top 10 Percent Law," as "a blunt tool" of arguably questionable constitutionality. But a second judge, Carolyn Dineen King, refused in a concurring opinion to endorse Judge Higgenbotham's critique of the admissions guarantee, arguing that its wisdom and validity were not even considered by the court. And a third judge, Emilio M. Garza, issued a concurring opinion that heavily criticized the chief Supreme Court precedent the panel felt bound by in ruling in favor of Texas: the high court's 2003 Grutter v. Bollinger decision upholding the use of race-conscious admissions by the University of Michigan's law school.
In the short term, at least, the three judges' ruling has the effect of leaving intact a 2009 U.S. District Court decision dismissing the lawsuit, which had been brought by two white applicants that the university had rejected.
Patricia C. Ohlendorf, the Austin campus's vice president for legal affairs, said officials there were "extremely pleased" with the appeals panel's ruling because "the university has always maintained that its undergraduate admissions policy is constitutional and is consistent with the U.S, Supreme Court's guidance in Grutter v. Bollinger."
Contributing to the Debate
In the long term, however, Tuesday's ruling, with its sharply differing opinions, could inspire a wide-ranging debate in the likely event that the decision is appealed.
Edward J. Blum, director of the Project on Fair Representation, a group that helped represent the plaintiffs, said he was not sure whether his lawyers would appeal the three-judge panel's ruling to the full Fifth Circuit or instead ask the U.S. Supreme Court to take up the case. "The one thing we are obviously going to do is take it to a higher court," he said.
The majority opinion by Judge Higgenbotham characterized the race-conscious admissions policy that the University of Texas adopted after the Grutter decision as narrowly tailored, effective, and closely adhering to the Grutter decision's requirement that public colleges consider applicants' race or ethnicity only in the context of a holistic review of individual students.
Rather than challenging the university's consideration of race, Judge Higgenbotham aimed his criticism at the state's top-10-percent law, arguing that the admissions guarantee "is in many ways at war" with the pursuit of diversity endorsed by the Supreme Court in Grutter. He based that assessment partly on the law's negative impact on minority students with high-school class ranks below the top 10th of their class, and partly on university data showing that many of those admitted under the policy are clustered in certain programs, such as social work and education.
Judge Garza's opinion said, "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." It said Supreme Court Justice Sandra Day O'Connor's conclusion, in the opinion she wrote for the Grutter majority, that racial diversity yields educational benefits "rests almost entirely on intuitive appeal rather than concrete evidence." And it argues that the Austin campus's consideration of race brings in so few additional minority students that it fails to achieve its stated ends.
The opinion written by Judge Higgenbotham and signed by the two others makes clear that the three expect Texas's admission policy to be under legal scrutiny for a long time to come. "In this dynamic environment," it says, "our conclusions should not be taken to mean that [the University of Texas] is immune from its obligation to recalibrate its dual system of admissions as needed, and we cannot bless the university's race-conscious admissions program in perpetuity."