5TH CIRCUIT DECLINES EN BANC REVIEW OF FISHER V. UNIVERSITY OF TEXAS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

On August 17, 2009, Judge Sam Sparks of the US District Court for the Western District of Texas granted summary judgment to the University of Texas (UT) at Austin in a lawsuit by two white applicants claiming, via the 14th Amendment, that they were unfairly denied admission on the basis of race [556 F. Supp. 2d 603]. Citing the Supreme Court’s rulings in Grutter v. Bollinger (2003) and Parents v. Seattle School District (2007), Judge Sparks ruled that UT had a compelling government interest in achieving diversity in their undergraduate programs, UT exhausted race-neutral methods in failed attempts to achieve diversity, and therefore, UT’s race-conscious plan was narrowly tailored toward the goal of achieving diversity. In the words of Judge Sparks:

Accordingly, the Court finds UT's consideration of race in admissions is narrowly tailored. In fact, it would be difficult for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court in Grutter. Nothing in Grutter prohibits a university from using both race-neutral alternatives and race itself, provided such an effort is necessary to achieve the educational benefits that stem from sufficient student body diversity. Such efforts should in fact be encouraged as the next logical step toward the day when consideration of a person's race becomes completely unnecessary. But, until that day, universities are not required to exhaust every possible race-neutral alternative as long as they consider those alternatives seriously and in good faith. UT not only considered several race-neutral alternatives, it implemented them and continues to use them to this day. But, despite those efforts, UT still found diversity lacking in its student body and thus decided to consider race as part of its admissions process. Under Grutter and Parents Involved, UT's decision and the ensuing admissions policy is narrowly tailored to further a compelling governmental interest.


This ruling was subsequently supported in a unanimous opinion by a four-judge panel of the 5th Circuit on January 18, 2011 [631 F.3d 213], and on June 17, 2011, a larger panel of 5th Circuit judges voted 9 to 7 to refuse an en banc hearing [2011 U.S. App. LEXIS 12387]. Therefore, unless it goes to the Supreme Court, this case is over.

The precedent setting cases for the present case are Hopwood v. Texas (1996), Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003). Briefly, in Hopwood, the 5th Circuit struck down an admissions plan UT had in which minority applicants were placed in higher categories. In Grutter, a 5-4 majority of the Supreme Court ruled that the University of Michigan’s race-conscious Law School admissions policy was legal under the 14th Amendment because diversity is a compelling government interest and the Law School’s plan for establishing a “critical mass” of underrepresented minority students because, in Justice O’Connor’s words “the program is flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes race or ethnicity the defining feature in the application.” In contrast, in Gratz, a 7-2 majority of the Supreme Court overturned the University of Michigan’s undergraduate admissions plan. In comparing the Gratz and Grutter rulings, Justice O’Connor stated:

Unlike the law school admissions policy …. The procedures employed by the …. Office of Undergraduate admissions do not provide for a meaningful individualized review of applicants. … The Law school considers the various diversity qualifications of each applicant, including race, on a cases by case basis. … By contrast, the Office of Undergraduate Admissions relies on the selection index to assign every underrepresented minority the same, automatic 20-point bonus without consideration of the particular background, experiences, or qualities of each individual applicant.


Readers interested in more detailed accounts of the facts and circumstances surrounding the Gratz and Grutter rulings should check out the following links.

http://www.siop.org/tip/backissues/Oct03/pdf/412_117to127.pdf
http://www.siop.org/tip/backissues/July03/pdf/411_144to153.pdf
http://www.siop.org/tip/backissues/Apr03/pdf/404_060to069.pdf


What’s interesting with respect to the present case is that UT found a way to provide individualized attention in a race-conscious undergraduate admissions program, where other undergraduate universities have failed.

More specifically, after the Hopwood ruling, UT eliminated all race-conscious admissions programs. However, after the Grutter ruling, UT commissioned studies that showed there were failures in the system to enroll a “critical mass of underrepresented minorities.” Ultimately, the university applied a “two-tier” system for Texas residents, which account for 90% of UT annual admissions (the other 10% goes to out of state and international applicants). The first tier consists of Texas residents in the top 10% of their high school graduating class, who are guaranteed admission. This accounts for roughly 88% of the Texas residents admitted. Second tier Texas Residents are then considered on an individual basis based on their Academic Index (AI), which considers standardized test scores and high school rank, and the “Personal Index (PI), which is based on performance on two required essays and the “Personal Achievement” (PA) score. The calculations are complex, but in a nutshell, the kicker is a section in the PA score that permits consideration of “special circumstances”, including socioeconomic status.

The moral of the story is that large undergraduate institutions can engage in race-conscious plans if they (1) study their own diversity (or lack thereof), (2) make serious attempts to enforce race-neutral solutions (that subsequently fail), and (3) focus the definition of diversity not so much on race, per se, but rather, on socioeconomic and/or sociocultural disadvantage.

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