Sunday, October 09, 2011

UT, affirmative action head back to Supreme Court

By Linda P. Campbell | Star Telegram
October 5, 2011

Is getting turned down by the University of Texas' flagship campus in Austin a deprivation of individual rights so profound that it offends the Constitution?

If so, there are umpteen disappointed applicants who'll be wanting a piece of those reparations.

But the Supreme Court might not be so dismissive.

Abigail Noel Fisher, who didn't get into UT's entering freshman class for fall 2008, has asked the justices to find the university's admissions process unconstitutional on the grounds that her "academic credentials exceeded those of many admitted minority candidates."

The case potentially isn't just about one disappointed would-be Longhorn but about the undoing of affirmative action in higher education.

Are enough justices ready to walk through this minefield again after just eight years?

In 2003, the court took up challenges to policies at the University of Michigan and its law school and said schools can consider race along with other admission factors. It had been 25 years since a landmark ruling, Regents of the University of California v. Bakke, that allowed racial considerations so long as universities didn't set quotas.

Writing for a 5-4 majority in the Michigan cases, Justice Sandra Day O'Connor said, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

The question could come down to whether public officials or federal judges get to decide when consideration of race is no longer necessary.

Texas has been struggling with the "when" and the "how" since before today's freshmen were born.

Fisher was probably barely talking when Cheryl Hopwood, an Anglo single mother who'd worked her way through undergraduate school, sued UT law school for reverse discrimination after she was rejected in 1992.

Hopwood was among several plaintiffs recruited to challenge a system that at that time evaluated Anglo applicants separately from African-Americans and Hispanics.

Hopwood gained a permanent place in the law books when the 5th U.S. Circuit Court of Appeals in 1996 ruled that the law school could not consider race in admissions to achieve a diverse student body, contrary to Bakke's 1978 holding. One of the appellate judges, though, said, "If Bakke is to be declared dead, the Supreme Court, not a three-judge panel of a circuit court, should make that pronouncement."

Of course, the Supreme Court eventually affirmed Bakke, though not in the Hopwood case (the justices turned down the state's petition).

But in the meantime, Texas looked for a race-neutral way of increasing the unacceptably low numbers of African-Americans and Hispanics being accepted to public institutions, especially the premier campuses. In 1997, the Legislature passed the "Top 10 Percent Law" that guarantees high school graduates in the highest-ranking tier of their class admission to a state university.

This eventually diversified enrollments, but it created its own set of inequities and made getting into UT even harder.

For instance, students in the top 10 percent at weaker high schools might get admitted automatically over academically outstanding students who are ranked in the second 10 percent at stronger high schools.

Top 10 percenters filled more than 80 percent of UT's freshman slots for 2008-09, leaving multi-thousands of other hopefuls to fight for 1,216 remaining places. (Officials finally persuaded the Legislature to cap top 10 percent admissions at 75 percent of each freshman class.)

For nonautomatic applicants, UT takes into account such things as academics and honors, leadership qualities and extracurriculars, work experience and community service, socioeconomic status and family responsibilities. Race was returned to the mix after the Supreme Court's Michigan rulings, and after UT officials found that few of its smaller classes had any African-Americans, Hispanics or Asian-Americans in them.

In January, the 5th Circuit upheld the university's practice, saying it was narrowly tailored to achieve the compelling goal of a diverse student body.

But Fisher's lawyers argue that UT has increased African-American and Hispanic enrollment without considering race and that there's no proof continuing the practice will diversify classrooms.

College students get the best education in real life through exposure to a wide variety of people. But use of race in admissions runs the risk of treating people as a group rather than as individuals.

Expect a lot more litigating before the colorblind day O'Connor envisioned arrives.

Linda P. Campbell is a Star-Telegram editorial writer.


Twitter @LindaPCampbell

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