Texas's Use of Race in Admissions Upheld; Could Mean Another Supreme Court Trip

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By Nicholas Datlowe

July 18 — The use of race as a factor in the admissions process of the University of Texas at Austin has survived the stricter scrutiny required by the U.S. Supreme Court in a July 15 opinion by the U.S. Court of Appeals for the Fifth Circuit.

Just last year the Supreme Court remanded the case to the Fifth Circuit for a “further judicial determination that the admissions process meet strict scrutiny in its implementation,” giving the University “no deference” to its assertion that its use of race is narrowly tailored to meet its diversity goals. Fisher v. Univ. of Tex. at Austin, 81 U.S.L.W. 4503 2013 BL 167358 (U.S. June 24, 2013) (81 U.S.L.W. 1830, 6/25/13).

“We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter,” Judge Patrick E. Higginbotham wrote for the court, referring to the Supreme Court's seminal affirmative action decisions in Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265 (1978) and Grutter v. Bollinger, 539 U.S. 306 (2003).

Adam Winkler, a professor at UCLA School of Law, Los Angeles, said via a July 18 e-mail that the “Fifth Circuit followed the Supreme Court's command to be less deferential to the University,” and that it “reviewed the University's claims with skepticism but was ultimately persuaded that the University's policy was necessary to promote diversity.”

Winkler said the Fifth Circuit's latest opinion may make another trip to the Supreme Court.

Gregory J. Vincent, vice president for diversity and community engagement at the University of Texas at Austin, in a July 21 phone interview called the majority's decision “well-reasoned” and “thoughtful,” and said that he thought the opinion “answered the questions raised by the Supreme Court.”

Burt Rein, of Wiley Rein, LLP, Washington, and the lead attorney for Fisher, said in a July 17 phone conversation that she was “considering further avenues of relief,” but declined to comment further.

Not Just a Numbers Game.

This decision is the latest in the saga of Abigail Fisher's challenge to the University of Texas at Austin's use of race as a factor in its admissions process, which began after she was denied admission in 2008. The decision above left intact the conclusion that a diverse student body is a constitutionally permissible goal, the court said, citing Bakke.

The only question on remand, therefore, was whether the University's use of race here was “necessary” to achieve the ends of diversity. The court determined that it was.

Much of the incoming class for the University is determined by the legislatively-enacted Top Ten Percent Plan, which guaranteed admission to students who graduate in the top ten percent of their high school class. In 2008, 81 percent of the university's incoming class was selected this way. The remainder is selected via the “holistic” program, which includes consideration of the applicant's race as one factor among many.

“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 admission would approach an all-white enterprise,” the court said.

‘Critical Mass.'

Fisher argued that the university's student body had reached a “critical mass” of diversity—the Supreme Court's “measure of affirmative action's success,” according to Winkler—based on the Ten Percent program. The race-neutral program admitted approximately 21.5 percent minority students in 2004—more than was admitted by the plan approved by the Supreme Court in Grutter, she argued.

The court responded that the “sad truth” of the Ten Percent Plan is that it achieves this diversity because of the “de facto segregation of schools in Texas.” Thus admitting students on this basis alone “reduces critical mass to a numerical game and little more than a cover for quotas,” regardless of its pretextual race neutrality, the court said.

Further, by leaving out students who fell outside their high school's 10 percent but would nevertheless “enrich the diversity of UT Austin's educational experience,” admissions based purely on the Ten Percent program and other purely race-neutral criteria “leaves a gap in an admission process seeking to create the multi-dimensional diversity that Bakke envisions,” the court said.

“The elephant in the room is the constitutionality of the Ten Percent Plan,” Winkler said. “Although facially neutral, it was enacted with racial intent”—responding to the result in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), which disallowed the consideration of race at all in university admissions (subsequently abrogated by Grutter)—“and works like quota.” It was not squarely at issue here.

Small But Necessary.

The increasing number of admissions through the Ten Percent program enhanced the program's strength in admitting a racially diverse student body on the numbers, but exacerbated its weakness in allowing for a student body with a diverse set of experiences, considered individually, beyond the single academic dimension, the court said. Thus the “necessity of a complementary holistic admissions program” also grew.

After the introduction of race as a factor in the holistic admissions process, the university saw modest increases in the percentage of minority students admitted through that program, according to the court. This increase “is its strength, not its weakness,” and indicates the narrow tailoring of the program, the court said.

Further, the racial factor in the holistic program allows the university to consider whether or not there is sufficient diversity within its competitive academic departments, the court said.

Vincent noted that although it is one of the more popular majors, black students still make up a very small number of the overall economics program. This “isolation indicates that even with the numbers,” from the Ten Percent plan, “we're still struggling,” he said.

Though such programmatic diversity is hard to define, Vincent said, “I know it when I see it.” Speaking as a professor, he also said that “it is very telling” when classes actually achieve “critical mass”—“class discussions are very different and break down stereotypes, as discussed by [Justice Sandra Day] O'Connor in Grutter,” he added.

In sum, the court was “persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court. ” Rejecting this plan would “confound developing principles of neutral affirmative action, looking away from Bakke and Grutter,” it said.

Judge Carolyn Dineen King joined the opinion.

Dissent: ‘Critical Mass' Unclear.

Judge Emilio M. Garza dissented, arguing that “it is impossible to determine whether the University's use of racial classifications in its admissions process is narrowly tailored to its stated goal.”

To show that the “use of racial classifications in the admissions program is narrowly tailored to its goal, the University must explain it goal, and do so ‘with clarity,'” Garza wrote, quoting the Supreme Court's decision in Fisher's case. According to Garza, it failed to do so because it never sufficiently defined what it meant by achieving a “critical mass” of minority students.

Garza identified five strands of argument that he said the university advanced as showing that their use of race in the admissions process was narrowly tailored. He rejected each in turn.

Insofar as the university uses race to ensure that there is a certain small number of minority students admitted holistically, Garza says that it is “entirely unexplained” how this marginal increase “could be relevant in assessing ‘critical mass.'”

Garza also wasn't convinced by the university's argument that it sought higher quality minority enrollment. Because the university doesn't evaluate the students admitted under the Ten Percent law for indicia of “quality” before using race in the holistic process, there may be a more narrowly-tailored option, and the university has failed to carry its burden to show race consideration is necessary, Garza said.

Garza was likewise unconvinced that efforts to achieve more specific “classroom diversity,” justify the policy because no one in the admissions process seems to be able to define how race is used in the process. Periodic reviews of the necessity of the program do not save it because that delegates the determination of necessity to the university, not the court. Finally, the analogy to the program in Grutter is unavailing because the ‘University's burden is to prove that its own use of racial classifications is necessary and narrowly tailored for achieving its own diversity objectives.”

Winkler was not persuaded by these arguments. “To answer the dissent's objections here would require the university to identify a specific percentage of students of color it seeks to admit,” he said. “That turns Grutter, which held that numbers shouldn't be the basis of narrow tailoring, on its head.”

On Appeal?

Winkler said there is “a strong chance the Supreme Court will review this decision.” He noted that “the Roberts Court has yet to uphold any government policy that considers race,” and that Justice Anthony M. Kennedy “has never voted to uphold a race-conscious policy.” He therefore predicted that “[i]f the case goes to the Supreme Court, it's likely to be overturned.”

Vincent nevertheless said that he was “optimistic” that the decision would survive additional Supreme Court review, if it were to come to that, based on the “well-developed record and arguments” here.

Fisher was represented by Wiley Rein, LLP, Washington. The University was represented by Latham & Watkins, LLP, Washington; Quinn, Emmanuel, Urquhart & Sullivan, LLP, Washington; and Gibson, Dunn & Crutcher, LLP, Dallas.

To contact the reporter on this story: Nicholas Datlowe in Washington at ndatlowe@bna.com

To contact the editor responsible for this story: Pamela Atkins at patkins@bna.com

Full text at http://www.bloomberglaw.com/public/document/Fisher_v_Univ_of_Tex_at_Austin_No_0950822_2014_BL_195389_5th_Cir_.