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Race matters in higher education.

How much?  That is the key question the U.S. Supreme Court will address tomorrow when it hears oral arguments in Fisher v. UT Austin, et al.   If the commentators and legal pundits are correct,  UT will not light its tower to symbolize victory.  Instead, it may experience a black eye because it improperly considered race in its undergraduate admissions process.

With Associate Justice Kagan recusing herself, it may be difficult to muster enough votes to uphold the historic affirmative action decision issued in Grutter v. Bollinger, 539 U.S. 306 (2003).  Former Associate Justice Sandra Day O’Connor was the key vote in that case and she has now been replaced by Associate Justice Samuel Alito, who is suspect of racial programs.  A 4-4 decision split would uphold the decision by the U.S. Court of Appeals for the Fifth Circuit finding the affirmative action program at UT-Austin constitutional.

There are several issues the U.S. Supreme Court will likely address.  First, is the case moot?  The plaintiffs are set to graduate or has graduated and the court must decide whether there is a constitutional controversy that merits a decision.

Second,  what is “critical mass”?  The Court in Bollinger did not define the term.  UT maintains that “critical mass” must be achieved at the classroom level as opposed to the student body in order to achieve diversity and stop the consideration of race.  Even though former Governor George W. Bush signed the “Top Ten Percent” law in 1997 as a race-neutral response to the elimination of affirmative action in Hopwood v. Texas,  UT-Austin has maintained that the Top Ten Percent law has not diversified the student body.  Thus, it implemented an affirmative action program after the decision in Bollinger using “good faith” to consider race, as one factor, in the undergraduate admissions process.  However, the plaintiffs argue racial considerations are unnecessary because the Top Ten Percent law is a race-neutral alternative to achieve diversity.

Third, if UT-Austin is making a good faith effort, is it narrowly tailored?  UT-Austin maintains that its program is constitutional and follows the Bollinger decision. An answer to this question would first require that race can be considered in higher education admissions.

The decision in Fisher v. UT-Austin will be historic.  If the U.S. Supreme Court rules that UT’s affirmative action is illegal, UT-Austin will no longer have the benefit of capping freshman enrollment under the Top Ten Percent law, which was authorized in 2009.  During the debate of SB 175, former Texas Representative Veronica Gonzales (D-McAllen) added the “Hook’em Amendment,” which would eliminate the cap if UT-Austin could no longer consider race as a factor in undergraduate admissions.

Stay tuned for more analysis.

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Written by Admin

October 9, 2012 at 2:37 pm

Posted in Uncategorized

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