Supreme Court to Revisit Affirmative Action

By David G. Savage, Los Angeles Times

29 September 12

In a University of Texas case, justices consider whether affirmative action can be justified if a school is achieving diversity without using race.

fter a U.S. appeals court struck down race-based college admissions in Texas 16 years ago, the first Mexican American woman elected to the state Legislature proposed a simple change that transformed education in the state.

Rep. Irma Rangel said all students who graduated in the top 10% of their high school class should win admission to the state's colleges, including the highly regarded University of Texas. Her bill, signed into law by then-Gov. George W. Bush, opened the door to higher education for Mexican American students from the Rio Grande Valley, for black students from Dallas and Houston and for rural white students.

It also changed the University of Texas at Austin. Last year, 36% of those admitted under this policy were Latino or black, double the percentage of "underrepresented minorities" in 1996, the year affirmative action was struck down.

But the university chafed at the "top 10%" law and said its success relied on continuing segregation in many high schools. Left out too were many talented minority students from integrated, highly competitive high schools.

So when the Supreme Court ruled in 2003 that universities may consider a minority student's race as a "plus factor" in admissions, UT officials added a new affirmative action policy to go along with the automatic admission rule. For these new students — about one-fourth of the freshman class — their race may play a role in who is admitted.

The effect of the new policy has been modest. Nine in 10 of the Latino and black students admitted to UT in the last two years came as "automatic admits," not as beneficiaries of affirmative action.

Nonetheless, UT's lawyers must now defend their race-based admission policy before a more conservative Supreme Court, which will revisit the issue thanks to Abigail Fisher, a white student from Sugar Land, Texas. She was turned down by the university in 2008 and says she was a victim of illegal race discrimination.

The case poses a new question for the court, which will hear arguments next month. Can affirmative action be justified if a university is achieving diversity without using race? The answer could determine the future of affirmative action in college admissions in much of the nation.

The top 10% law, recently amended to admit the top 8% of graduates, has not only boosted diversity, but it has also brought other benefits. Since the mid-1990s, the graduation rate at UT-Austin has risen steadily. Studies showed the graduates admitted under the law outperformed others with higher SAT scores.

"It's had a profound impact. Before, about 10% of the high schools filled 75% of the freshman class seats here," said law professor Gerald Torres. Two years ago, the campus announced that for the first time, a majority of its freshmen were minorities: Latinos, Asians or blacks.

And nearly all these new students earned admission solely because of their academic performance.

But because the top 10% law drove admissions, university officials said they would prefer more freedom to select students who were extraordinary or special. For example, a student with high SAT scores who wants to major in architecture, science or music may deserve admission, even if that student did not graduate at the top of the class, they said.

The university also says it wants to make room for minority students who did well in integrated high schools.

"The racial diversity [arising from automatic admission] is mostly a product of the fact that Texas high schools remain highly segregated," university lawyers told the justices in briefs. Further, "the African American or Hispanic child of successful professionals in Dallas" who is not a top-tier graduate may be a better candidate for admission than a top graduate of a less-demanding high school with an "overwhelmingly Hispanic" or "overwhelming African American student body," they said.

The Texas case is being closely watched by higher education leaders nationwide, many of whom worry the court is ready to strike down or scale back affirmative action.

Since the court upheld affirmative action at the University of Michigan, the author of that 5-4 decision, Justice Sandra Day O'Connor, has retired and been replaced by the more conservative Justice Samuel A. Alito Jr. He and three other conservatives are likely to vote against use of "race conscious" admissions.

All eyes are again on Justice Anthony M. Kennedy, a centrist who has consistently opposed policies that rely on race. Dissenting in the Michigan case, he said the court should force "educational institutions to seriously explore race-neutral alternatives," such as the top 10% law in Texas.

Experts on higher education differ on whether a Texas-style automatic admissions law would work elsewhere.

Florida and California have used such policies to increase diversity after their affirmative action plans were halted in the 1990s. The results have been mixed.

In California, students who graduate in the top 9% of their high school class are admitted to the University of California system, but not necessarily to the campus of their choice. UC officials also give extra consideration to students who faced social and economic hardships.

The percentage of Latino students at UC has been rising steadily, but officials attribute this mostly to the surge in the Latino population. Despite their best efforts, they say, UC Berkeley and UCLA have fewer black students than in 1996.

UC President Mark G. Yudof was formerly the chancellor at the University of Texas. The automatic admissions policy "works well in Texas, but not so well in California," he said, because Texas has more segregated schools. UC's lawyers told the high court they had tried race-neutral policies, but achieved "limited and disappointing results."

But Edward Blum, an activist against affirmative action who launched Fisher's suit, believes the success of UT's automatic admissions policy will show the Supreme Court that race-based policies are no longer needed.

"Using a student's race to give him an advantage or disadvantage strikes most Americans as wrong," he said. "They are creating more diversity through the top 10% policy, and every black and Hispanic student can say, 'My race was not a factor in my admission.'"