After months of waiting for the U.S. Supreme Court to rule on the fate of its race-conscious admissions policy, the University of Texas at Austin is once again marshaling its defenses, this time to prove that race-neutral policies alone will not achieve the diversity the high court agreed is important.
The Supreme Court's decision on Monday to bounce the case back to an appellate court for closer scrutiny came as a relief to those who had feared a broad ruling striking down the use of affirmative action in college admissions.
The decision, in Fisher v. University of Texas at Austin (No. 11-345), instead puts the onus on the university to demonstrate that its race-conscious policy is narrowly tailored to the goal of diversity and that race-neutral policies would not create a sufficiently diverse student body. The lower court must then apply "strict scrutiny" to the university's rationale.
One critical piece of evidence is likely to be the Austin campus's top-10-percent plan, which guarantees admission to Texas residents in the top 10th of their high-school classes. The policy comes from a state law passed in 1997 to help increase diversity on the state's flagship campuses—Austin and Texas A&M University at College Station—at a time when race-conscious admissions policies were being challenged in court.The policy has helped, but how much is a matter of dispute. Lawyers for the plaintiff in Monday's case, Abigail Noel Fisher, argued that it was enough to create a critical mass of minority students, making race-conscious decisions unnecessary and, in fact, unconstitutional.By opening the doors to top students from predominantly minority school districts, the thinking went, the state's flagships could enroll diverse classes without explicitly considering race, as they previously had. (The fraction was later tweaked to ensure that no more than three-quarters of a college's entering class would be automatically admitted under the plan. This year, only the top 7 percent of high-school classes will be admitted in that way.)
The university, however, argued that the policy didn't go far enough. After the Supreme Court ruled in Grutter v. Bollinger in 2003, upholding a race-conscious admissions process at the University of Michigan's law school, the University of Texas began considering race as one of several factors in a holistic review of students who weren't admitted automatically.
Now, about half of the state's new high-school graduates are black or Hispanic, and at Austin they represent about a quarter of students, according to David Hinojosa, Southwest regional counsel for the Mexican American Legal Defense and Educational Fund.
Policy 'Lives for Another Day'
The university's president, William C. Powers Jr., said in a written statement on Monday that he was "encouraged" by the ruling. The university will continue to defend its admissions policies, he said, maintaining that they satisfy the standards set forth in previous court decisions.
In the meantime, the policies will remain unchanged, Kedra B. Ishop, vice provost and director of admissions at the flagship campus, said in an interview on Monday. While the Supreme Court "could have removed the role of race in the admissions decision," she said, instead it upheld the "compelling interest of diversity in higher education."
Michael A. Olivas, director of the Institute of Higher Education Law and Governance at the University of Houston, said the university should have no trouble defending its policy. The presumption is that "Grutter is good law until it's overturned, and this doesn't overturn it," he said. "It lives for another day."
Under the 10-percent plan, less than half of the students admitted are black or Hispanic, according to the university. As a strategy for increasing diversity, Mr. Olivas argued, the policy doesn't give an unfair edge to minority students. "It's time to stop assuming that just because a white didn't get in," he said, "it's because a less-deserving minority squeezed him out."
Jennifer Tran, a fourth-year government and sociology major at Texas who has been working with students to defend the current policy, called Monday's decision a "short-term victory."
"It's great that the Supreme Court understands that diversity is important," Ms. Tran said in an interview. "The university has consciously worked to make sure our policies balance the needs of diversity with the requirements of the law."
Still, she said, the decision to remand the case to the appellate court leaves students in limbo once again as they await the next ruling.
David Hinojosa, the lawyer for the legal-defense fund, said the case could end up being assigned to a federal district court for hearings on any new evidence.
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