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August 14, 2012 10:30 AM The Obama Administration and Texas Affirmative Action

By Daniel Luzer

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Sometime this fall the U.S. Supreme Court will render a decision in Fisher v. University of Texas at Austin, in which two white women are suing Texas’s flagship state university, arguing that their rejection for admission constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment.

The Obama administration is backing the university in the case, meaning that it supports the continued use of race-based criteria for admissions purposes. According to a brief filed Monday by U.S. Solicitor General Donald B. Verrilli:

The nation’s interests in a range of areas—including military readiness, national security, public health, federal law enforcement, global competitiveness, and education—will be more readily achieved if the pathways to professional success are visibly open to all segments of American society.
Numerous federal agencies—including the Departments of Defense, Justice, Education, Commerce, Labor, Homeland Security, and Health and Human Services, among others—have concluded that well-qualified and diverse graduates are crucial to the fulfillment of their missions. The United States thus has a strong interest in the development of the law regarding the consideration of race and ethnicity in admissions in higher education.

Perhaps more importantly for the administration’s argument, the University of Texas employed a deliberate race-based affirmative action plan until 1996. That year a federal appeals court ruled that it was unconstitutional to use race in college admissions. The Texas legislature, in response, created a policy by which the university is required to admit the top 10 percent of students who apply from each high school graduating class.

By that action, according to the solicitor general,

African Americans and Hispanics were… underrepresented in its student body, which resulted in a marked lack of diversity in the Classroom. As a result, “the university (was) less able to provide an educational setting that fosters cross-racial understanding, provides enlightened discussion and learning, and prepares students to function in an increasingly diverse workforce and society.” In addition, “significant differences between the racial and ethnic makeup” of the student body and the state’s population meant that “students at the university (were) currently being educated in a less-than realistic environment that is not conducive to training the leaders of tomorrow.”

And so the university created its current admissions policy, by which the school could consider race in addition to other factors. In other words, UT Austin would automatically admit the top 10 percent of every class and then, when considering other applicants, allow race to be used to determine admittance decisions. “Race is not considered in isolation or given independent weight.”

Abgail Fisher’s argument is that the new policy is unfair because it allows the university to deny admission to her despite the fact that she, while not in the top 10 percent of her high school graduating class, was qualified to attend under the other factors considered, but was nevertheless denied admission while other (black and Hispanic) students were admitted who had lower grades and SAT scores.

The Obama administration essentially argues that the benefits of diversity are critical enough to serve the interests of society that Fisher’s complaints are not valid.

The arguments of both parties are interesting here and seemingly valid in considering what the university is for and what sort of society it exists to develop. The crucial point, at least in my mind, would seem to rest in this line: “significant differences between the racial and ethnic makeup” of the student body and the state’s population meant that “students at the university (were) currently being educated in a less-than realistic environment.”

In Grutter v. Bollinger, the last major affirmative action case, Justice Sandra Day O’Conner wrote that “We expect… 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”

If the University of Texas’s admission’s plan has not gone far enough yet to create a state in which the (ethnically) historically disadvantaged students admitted to the state’s flagship state university are roughly proportional to the proportion of the state from historically disadvantaged ethnic backgrounds, the process isn’t over yet.

Getting there might be difficult and would likely require a good deal more than the admission office at UT Austin also can supply. But it’s hard to argue that racially based admissions policies are no longer necessary. [Image via]

Daniel Luzer is the news editor at Governing Magazine and former web editor of the Washington Monthly. Find him on Twitter: @Daniel_Luzer