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Interesting New Challenge To Preferential Admissions

In Hopwood v. Texas 78 F.3d 932 (5th Cir. 1996) the University of Texas and other schools in the Fifth Circuit were barred from using race in admissions. In response, Texas adopted the ?Top 10%? plan guaranteeing admission to high school graduates in the top 10% of their class. Since many high schools had high concentrations of blacks and Hispanics (the only minorities Texas actually cared about), this was, and was seen as, a way to produce ?diversity? without using preferential admissions. When Hopwood was in effect overruled by Grutter, Texas re-instituted race preferences in admissions, although the Top 10% plan was retained (and now accounts for about 80% of the admissions to UT Austin).

This plan, and similar ones in Florida and Texas, have proved controversial, both regarding their effect and their intent. Even critics of race preferences are divided on their merit and/or legality.

Now comes an interesting new challenge to race preferences in Texas. Grutter, of course, held that race preferences are permissible, but only after race-neutral means of producing ?diversity? have been found inadequate. According to the plaintiff?s press release, linked above,

[t]he present lawsuit claims that Top-10 Percent Plan is a successful race-neutral program that forecloses UT-Austin from considering a student?s race or ethnicity in admissions and that the University failed to consider and take advantage of alternative race-neutral means of achieving ?diversity? prior to implementing their racially-discriminatory policies.

In support of this argument, the brief submitted by the Project on Fair Representation, representing the plaintiff (who graduated in the top 12% of her class in a competitive high school) quotes various Texas officials emphasizing the success of its Top 10% plan.

In 2000, UT Austin President Larry R. Faulkner stated that ?the Top 10 percent law has enabled us to diversify enrollment at UT Austin with talented students who succeed. Our 1999 enrollment levels for African American and Hispanic freshmen have returned to those of 1996, the year before the Hopwood decision prohibited the consideration of race in admissions policies.?
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In a January 16, 2003 press release, UT Austin stated that the Top 10 Percent Law ?has effectively compensated for the loss of affirmative action.?
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In a January 29, 2003 press release, UT Austin announced that ?[d]iversity efforts at The University of Texas at Austin have brought a higher number of freshman minority students?African Americans [and] Hispanics . . . ?to the campus than were enrolled in 1996, the year a court ruling ended the use of affirmative action in the university?s enrollment process.

Thus the plaintiff alleges that UT has achieved ?diversity? that it deems satisfactory without the use of racially preferential admissions, and hence the re-introduction of race preferences fails the Grutter test.

One irony, notes InsideHigherEd,

is that the University of Texas has been pushing hard since 2003 to have the state repeal the 10 percent law. At the time the law was adopted, a federal appeals court decision banning affirmative action was in place in Texas. But when the Supreme Court upheld affirmative action?s legality, the university resumed consideration of race. University officials have said that they now have enough tools available to assure a diverse class that they don?t need the top 10 percent law and fear it deprives them of flexibility. Last year, it looked like the Texas Legislature was poised to repeal the law, but at the last minute, the repeal effort failed ? with many advocates for minority students saying that the 10 percent plan was still needed.

[Edward] Blum [of the Project on Fair Representation] said that if Texas does repeal the law, it would not change the suit. Texas can decide whether or not it wants to keep the law, he said. But it can?t consider race in admissions when the success of the law has demonstrated the ability to obtain diversity in a student body without using race-specific policies.

Finally, I have mentioned a number of times that I never have understood why supporters of race preferences always protest so loudly that they are not defending quotas. What exactly do they think is wrong with quotas? Similarly, I don?t understand why Justice O?Connor in Grutter felt it necessary to require schools to exhaust all race-neutral means of producing ?diversity? before adopting race preferences if there?s nothing wrong with race preferences.

Full post as published by Discriminations on April 09, 2008 (boomark / email).