Win for Affirmative Action

A federal appeals court on Tuesday upheld the University of Texas at Austin's consideration of race in admissions.

The ruling came in a case in which the U.S. Supreme Court ruled last year that public colleges could consider race in admissions, but only under strict conditions. Critics of affirmative action have hoped that those conditions were sufficiently narrow that when the appeals court took another look at UT-Austin's admissions policies, they would not meet those tests.

But a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit found, 2 to 1, that the Texas program is legal. The challenge to Texas was based in large part on the use of the "10 percent" plan, which guarantees the top graduates of every high school a spot at UT-Austin (or any other public college). Because many Texas high schools are segregated, this system results in the admission of black and Latino students -- and the challenge to UT-Austin's consideration of race said that with a percent plan, there was no need to go further.

But the appeals court said that just because Texas could get some diversity based on the percent plan alone does not mean it can't do more than that. "[A]n emphasis on numbers in a mechanical admissions process is the most pernicious of discriminatory acts because it looks to race alone, treating minority students as fungible commodities that represent a single minority viewpoint," the judges wrote. "Critical mass, the tipping point of diversity, has no fixed upper bound of universal application, nor is it the minimum threshold at which minority students do not feel isolated or like spokespersons for their race."

Further, the appeals court said that the University of Texas is correct not to rely solely on the percent plan, which in turn works because of segregation. The plaintiff's "claim can proceed only if Texas must accept this weakness of the Top Ten Percent Plan and live with its inability to look beyond class rank and focus upon individuals," the decision says. "Perversely, to do so would put in place a quota system pretextually race neutral. While the Top Ten Percent Plan boosts minority enrollment by skimming from the tops of Texas high schools, it does so against this backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and 40 percent of black students attend a school with 90 percent - 100 percent minority enrollment."

The lawyers challenging the university's affirmative action plan have already vowed to appeal, to the U.S. Supreme Court if necessary, so today's outcome -- while a major win for defenders of affirmative action -- will not end the debate.

From a Rejection in 2008 to New Definitions of the Rules

The lawsuit at the center of the debate was filed by Abigail Fisher, a white Texas woman who was denied admission to UT-Austin in 2008. She was not in the top 10 percent of her class, and so was not automatically admitted. She was considered along with others who did not make the 10 percent threshold. The university successfully defended the suit in federal district and appeals courts, but when the U.S. Supreme Court took the appeal, many in higher education who support affirmative action feared that the justices would ban colleges from considering race in admissions.

The Supreme Court didn't do so, and in fact explicitly stated that its past decisions upholding the consideration of race still stood. But the decision faulted the lower courts for not giving a rigorous enough review of the University of Texas's approach to affirmative action. The Supreme Court ruling made clear that colleges must get over a very high bar to justify the consideration of race.

"The university must prove that the means chosen by the university to attain diversity are narrowly tailored to that goal. On this point, the university receives no deference," said the decision, by Justice Anthony M. Kennedy.

Kennedy added: "Narrow tailoring also requires that the reviewing court verify that it is 'necessary' for a university to use race to achieve the educational benefits of diversity. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,' strict scrutiny does require a court to examine with care, and not defer to, a university’s 'serious, good faith consideration of workable race-neutral alternatives.'"

While Fisher and her lawyers were upset that the Supreme Court didn't block all consideration of race, they (and many others) thought that the kinds of standards Kennedy was setting would make it difficult for lower courts to back the Texas approach. But at least with the appeals court that ruled Tuesday, those predictions proved wrong.

How the Appeals Court Judged Texas

The appeals court panel reviewed a number of issues in the case. The University of Texas and others have argued that Fisher no longer has standing. She has since graduated from another university, the argument goes, so she is in no way being blocked from receiving an undergraduate education. The appeals court ruling says that facts in the case "call into question whether Fisher has standing," and that UT-Austin's arguments "carry force," but it adds that the Supreme Court wanted a review of the case on its merits, not standing issues.

In turning to the merits, the appeals court decision notes the high standard set by the Supreme Court. But the decision also notes that the Supreme Court has not retreated from the view that diversity is a legitimate goal for a college to have for the way it educates all students.

The judges then review Fisher's argument, which is that the 21.5 percent black and Latino enrollment that the University of Texas at Austin achieved through the percent plan alone provides diversity, removing the rationale for additional consideration of race. Since Texas returned to considering race (for the roughly 20 percent of slots not filled by the percent plan), Fisher argues that minority applicants have received unfair preferences.

The court soundly rejects that, pointing to the numbers. "The increasingly fierce competition for the decreasing number of seats available for Texas students outside the top 10 percent results in minority students being under-represented -- and white students being over-represented -- in holistic review admissions relative to the program’s impact on each incoming class," the ruling says. "Of the incoming class of 2008, the year Fisher applied for admission, holistic review contributed 19 percent of the class of Texas students as a whole -- but only 12 percent of the Hispanic students and 16 percent of the black students, while contributing 24 percent of the white students." ("Holistic" review is that full evaluation, including consideration of race and ethnicity, that the university undertakes for those not admitted through the percent plan.)

Further, the appeals court says that data show the necessity of considering race. In the class admitted in 2007, the last year before Fisher applied, the court notes, the average SAT scores for students admitted through holistic review was 1155 for Latino students, 1073 for black students and 1275 for white students. "Given the test score gaps between minority and non-minority applicants, if holistic review was not designed to evaluate each individual’s contributions to UT-Austin’s diversity, including those that stem from race, holistic admissions would approach an all-white enterprise," the decision says.

Another key factor in UT-Austin's favor, the court ruling says, is that it launched and promoted a series of efforts (without considering race in admissions) that would have the impact of attracting more minority applicants. The university opened new recruitment centers, added to its financial aid budget, created programs for high school students, and so forth, the decision details. So there is in fact evidence that UT was trying lots of strategies, and only by using them all (including consideration of race in admissions) was it making any progress.

"[T]this record shows that UT Austin implemented every race-neutral effort that its detractors now insist must be exhausted prior to adopting a race-conscious admissions program," the ruling says.

The ruling also says -- in numerous ways -- that the percent plans are flawed in terms of promoting long-term educational equality. For example, the decision notes that most predominantly minority high schools are not the highest-achieving Texas high schools -- in part because many of them lack sufficient funds, and they educate disproportionate numbers of at-risk students. Further, the ruling says, relying on percent students to provide diversity leaves out others. And the report stressed the dependence of the percent plans on continued segregation.

"A variety of perspectives, that is differences in life experiences, is a distinct and valued element of diversity," the decision says. "Yet a significant number of students excelling in high-performing schools are passed over by the Top Ten Percent Plan although they could bring a perspective not captured by admissions along the sole dimension of class rank. For example, the experience of being a minority in a majority-white or majority-minority school and succeeding in that environment offers a rich pool of potential UT-Austin students with demonstrated qualities of leadership and sense of self. Efforts to draw from this pool do not demean the potential of Top Ten admittees. Rather it complements their contribution to diversity -- mitigating in an important way the effects of the single dimension process."

The ruling was by Judge Patrick E. Higginbotham.

The Dissent

While the ruling offered strong support for UT-Austin's position, a dissent by Judge Emilio M. Garza offered a different take. He said that, while the majority says that it is holding UT-Austin to the higher standard set by the Supreme Court, the appeals court "continues to defer impermissibly to the university’s claims" about how many minority students it needs.

Garza writes the university's entire argument is based on the desire for a "critical mass" of minority students, but that all he really knows about that critical mass is that the university wants more than it could achieve through the percent plan.

"At best, the university’s attempted articulations of 'critical mass' before this court are subjective, circular, or tautological," Garza writes. "The university explains only that its 'concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.'  And, in attempting to address when it is likely to achieve critical mass, the university explains only that it will 'cease its consideration of race when it determines ... that the educational benefits of diversity can be achieved at UT through a race-neutral policy....' These articulations are insufficient. Under the rigors of strict scrutiny, the judiciary must 'verify that it is necessary for a university to use race to achieve the educational benefits of diversity.' It is not possible to perform this function when the university’s objective is unknown, unmeasurable, or unclear."

Garza stresses that this question is raised because of the relatively small impact that holistic review has when such a large share of the class at UT-Austin is admitted through the percent plan. "It is undeniable that the University admits only a small number of minority students under race-conscious holistic review," he writes. "In 2008, the sole year at issue in this case, less than 20 percent of the class was evaluated under the race-conscious holistic review process. Even if we assume that all minority students who were admitted and enrolled in that year through the race-conscious holistic review process gained admission because of their race, this number is strikingly small -- only 216 African-American and Hispanic students in an entering class of 6,322. The university fails to explain how this small group contributes to its 'critical mass' objective."

Non-Shocking Reactions

As soon as the appeals court decision was handed down, various players issued reactions, but none of those reactions suggested new positions.

Fisher, through her lawyers, issued a statement vowing to keep fighting. “It is disappointing that the judges hearing my case are not following the Supreme Court’s ruling last summer. I remain committed to continuing this lawsuit even if it means we appeal to the Supreme Court once again," she said. "It is a shame that for the last six years, hundreds of UT applicants were denied admission because of UT’s racial and ethnic preferences."

Jennifer Gratz, CEO of the XIV Foundation (which campaigns against the consideration of race in admissions) and a plaintiff in an earlier lawsuit on the issue against the University of Michigan, issued a statement criticizing the appeals court's decision, but seeing what (for her) is a silver lining. "Today’s Fisher decision leaves the door open for the Supreme Court to issue the broad ruling many pundits expected from its first hearing," Gratz said.

Bill Powers, president of UT-Austin, issued a statement saying that he was "very gratified" by Tuesday's ruling. "This ruling ensures that our campus, our state, and the entire nation will benefit from the exchange of ideas and thoughts that happens when students who are diverse in all regards come together in the classroom, at campus events, and in all aspects of campus life," he said.

Ada Meloy, general counsel of the American Council on Education, said via email that she found the decision "thoughtful" and hoped that it would help continue the legal analysis that has allowed colleges to consider race in admissions. "The Supreme Court’s earlier opinion did not close that door, and we hope it will remain open to allow  consideration of race and ethnicity when properly carried out in support of an institution’s mission," she said.