Court Win for Affirmative Action

Inside Higher Ed
August 18, 2009

A federal judge on Monday rejected one of the first legal attempts to roll back the 2003 ruling by the U.S. Supreme Court upholding the consideration of race and ethnicity, in some circumstances, in admissions decisions by public colleges and universities.

The decision by Judge Sam Sparks strongly upheld the admissions policies at the University of Texas at Austin as consistent with the Supreme Court ruling -- and rejected the argument that Texas had failed to meet the tests set out by the Supreme Court. In so doing, Judge Sparks shut down (for now) one strategy of those who oppose affirmative action -- namely trying to say that colleges' policies go beyond what the Supreme Court permitted. But the legal group that brought the case vowed Monday night to appeal to the U.S. Court of Appeals for the Fifth Circuit and, if necessary, to the Supreme Court.

The arguments in the suit against Texas generally attempted to use the Grutter v. Bolllinger decision, which upheld the use of race at the University of Michigan law school, to limit affirmative action. The Texas lawsuit, filed on behalf of a white high school senior who was rejected by UT Austin, noted that Grutter was premised on a link between diversity goals and educational goals, and that the decision did not envision the consideration of race as open-ended. The suit argued that because Texas didn't define a specific percentage goal and continued to use affirmative action after having success at attracting many minority students, the university was going too far.

But Judge Sparks disagreed. "The court finds both the plaintiffs' arguments unpersuasive and finds UT has a compelling interest in student body diversity as articulated in Grutter. First and foremost, nothing in Grutter suggests a university must establish a specific percentage, or range of percentages, the achievement of which would satisfy critical mass," Sparks wrote. He goes on to say that if UT did establish a specific percentage, it might be creating a quota of the sort barred by Grutter.

Another argument by the plaintiffs was that the university's use of affirmative action was illegal because it primarily benefits black and Latino applicants, and not other minority groups. Again, Judge Sparks rejected the argument.

"Plaintiffs cite no evidence to show racial groups other than African-Americans and Hispanics are excluded from benefiting from UT's consideration of race in admissions," he wrote. "As the Supreme Court recognized, the Michigan Law School's policy did not mention Asians or Jews 'because members of those groups were already being admitted to the Law School in significant numbers.' Throughout the opinion, the Supreme Court recognizes the Law School's interest in ensuring the admission of 'underrepresented' minority students. It is undisputed that UT considers African-Americans and Hispanics to be underrepresented but does not consider Asian-Americans to be underrepresented."

A novel argument made in the suit was that the use of the "10 percent" plan in Texas -- recently modified, but under which those in the top 10 percent of their high school classes were assured admission -- meant that the university couldn't also consider race in admissions. Texas adopted the 10 percent system after a federal appeals court barred the use of race in admissions. But when the Michigan decision came down, it overturned that decision, and UT Austin -- while still covered by 10 percent -- resumed consideration of race and ethnicity in admissions. The plaintiffs argued in the case that since 10 percent helped promote diversity without considering race, there was no justification for considering race.

Of this argument, the judge said the following: "The undisputed evidence establishes that UT has done more than merely consider race-neutral alternatives. The vast majority of UT students are admitted under the Top Ten Percent law, which plaintiffs agree is a race-neutral policy, and the undisputed evidence establishes UT has instituted several scholarship programs intended to increase the diversity yield from acceptance to enrollment, expanded the quality and quantity of its outreach efforts to high schools in underrepresented areas of the state, and focused additional attention and resources on recruitment in low-performing schools.

Despite these race-neutral efforts to expand diversity at UT, in 2004 the university determined it still lacked a diverse student body, as evidenced by the absence of African-American and Hispanic students in thousands of its classes. To argue UT has failed to give serious, good faith consideration to race-neutral alternatives is to ignore the facts of this case -- namely, that UT has used and continues to use race-neutral alternatives in addition to its limited consideration of race as part of its admissions process."

Edward Blum, director of the Project on Fair Representation, the legal group that brought the case, vowed Monday to appeal as far as necessary. He said that the judge "did a very competent job of laying out the facts in the case," but "made a mistake in his analysis of the Grutter opinion." Blum said that the question of when race can be used under Grutter remains "a big question, and we are confident that before a senior court, we will prevail.... We believe that introducing race and ethnicity into admissions is a very important and weighty matter."

A statement from the Mexican American Legal Defense and Educational Fund, which opposed the suit, said that the ruling was important in upholding the right of universities like Texas to use a mix of race-neutral and race-conscious ways to build a diverse class of students. "The court's ruling sends a strong message to universities across the nation that race can still be a factor when considering applications for admissions," said Nina Perales, MALDEF's Southwest regional counsel.

Michael A. Olivas, a law professor at the University of Houston who is an expert on higher education law, said Monday night of the ruling's meaning: "Grutter is good law, and in addition, neither white applicants nor conservative law firms should continue to waste time assailing non-racial plans."