What did Fisher v. University of Texas resolve?
After eight years, the legal case challenging the University of Texas at Austin’s admissions policy has finally been decided. On June 23, the United States Supreme Court ruled 4-3 that the university’s narrow consideration of race “as a factor of a factor of a factor” is constitutional—at least, for now. While the proximate legal challenge is concluded, the issue of how to best evaluate and admit students is far from settled. Even in the court’s decision, it told university officials that they must constantly evaluate the admissions program and whether its use of race is achieving “the educational benefits of diversity.”
To understand what the ruling means, it’s worth reviewing some of the distinctive features of the university’s program. There are basically two ways freshmen get into UT. Either you rank highly enough in your high school class that you qualify for automatic admission, or you are holistically reviewed. By Texas statute, the percentage of the freshman class that gets in automatically is capped at 75 percent. All the top 1 percenters get admitted. Then all the top 2, and so on until 75 percent of the spots in the incoming class are filled, which tends to happen at the top 7 or top 8 percenters. The other quarter of the class gets admitted under holistic review. That’s where an applicant’s race can be considered.
How this bifurcated system came into being is also worth revisiting. In 1996, the Fifth Circuit ruled in Hopwood v. Texas that the university could not use race in admissions. As a result, the state created the Top 10 Percent Law, which guaranteed Texas high school students who graduated in the top 10 percent of their class automatic admission to any Texas public university. Early on, the law worked well to raise the number of minority students who matriculated at UT-Austin, but in time those gains flat-lined.
In 2003, the Supreme Court ruled in Grutter v. Bollinger that universities could narrowly consider race in admissions. Meanwhile, as the percentage of UT’s freshmen class admitted solely on class rank inched steadily closer to 100 percent, the Texas legislature amended the statute to add the current cap that limits Top 10 Percent enrollees to three-quarters of the class. Sensing that admitting students on class rank alone would not meaningfully move the needle on minority admissions, the university returned to considering race as a factor in the holistic review that 25 percent of the class undergoes.
Perhaps surprisingly, the makeup of those two groups is not quite what you would think. If Top 10 alone could not achieve the necessary educational benefits, you would expect the makeup of the portion reviewed holistically to close the gap. In fact, the reverse is the case: The cohort admitted through Top 10 alone is more diverse than the cohort that comes in through holistic review. The result is a confusing intellectual tangle: The justification for using race is to correct for the limits of Top 10, and yet when the university does so it fields a less diverse group of students, although perhaps more diverse than if race were removed as a factor.
There are strong arguments to be made that the university deserves discretion in how it selects students, and that holistic review is a sensible way to select students with strengths not fully reflected in class rank. In fact, those who read the legislative tea leaves see signs that in the next session legislators may reduce the percentage of the class that gets in through Top 10 from three-quarters to one-half. Were that to happen, and were the relative racial breakdowns between the Top 10 and holistically reviewed cohorts to hold, the result would be a less diverse University of Texas freshman class. Would that really be a win for affirmative action?
Photos (from top): UT president Greg Fenves speaks to media outside the Supreme Court on Dec. 9,2015; Marsha Miller
UT supports demonstrate during a hearing in Austin on Nov. 13, 2013; Jay Janner/TNX/ZUMAPRESS.com
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