Texas news in context: Fisher v. Texas and affirmative action

Posted on: August 2nd, 2010 by Patrick Brendel No Comments

Tuesday the U.S. Court of Appeals for the Fifth Circuit will hear arguments in Fisher v. Texas, where two Texan plaintiffs–both female and white–are challenging race-based admissions to The University of Texas. The court hearing is a news item several years in the making.

In April 2008, lead plaintiff Abigail Fisher, then an 18-year-old student from Houston suburb Sugar Land, sued UT after her application for admission was turned down. Fisher placed in the top 12 percent in her graduating class, scored an 1180 on her SAT and played the cello. Students who graduate in the top 10 percent of their class automatically earn admission to the state college of their choice, including UT. The suit didn’t challenge the so-called “top 10 percent rule” but says UT’s consideration of race among admissions criteria is unconstitutional, and that Fisher was effectively denied admission because she is white.

UT maintains an index of court records associated with the case.

The Austin-American Statesman’s Lowdown on Higher Ed blog broke the news April 7, 2008 (“UT sued for considering race in admissions“), boiling down the case to two assertions by the plaintiff: Colleges can only use affirmative action after race-neutral approaches are found to be inadequate; and, the top 10 percent rule is working. On the flip side, “UT officials contend that the law hasn’t done enough to boost minority enrollment.”

According to an article in Texas Lawyer (“Role of Race in UT Admissions Challenged Again“), Fisher’s attorneys are attempting to use UT officials’ public statements against them, including “a Jan. 16, 2003, press release in which UT-Austin noted that the top 10 percent law ‘has effectively compensated for the loss of affirmative action.’”

The Texas Lawyer article also included the perspective of a lawyer who helped defend UT law school in the 1996 Hopwood v. Texas Supreme Court case. The ruling banned UT from using race in admissions. The university added race back in as a factor after the 2003 Supreme Court decision Grutter v. Bollinger, upholding race-based admissions criteria at the University of Michigan Law School.

Law professor Douglas Laycock (a former UT law professor now teaching at UM Law School) said Texas’ top 10 percent rule “is not an adequate alternative to affirmative action.”

In April 2008, Fisher’s lawyer Bert W. Rein told the Houston Chronicle (“White teen sues UT over admissions policy“), “[Fisher] isn’t looking to become a national symbol. She just wants to go to the University of Texas.”

As the Chronicle notes, the original suit asked that Fisher “be re-evaluated by UT-Austin in a ‘race-neutral’ manner and admitted if she qualifies,” in addition to removing race-based criteria from the admissions process.

An Inside Higher Ed blogger (“Affirmative Action Challenged Anew“) said the suit was a bit ironic since UT “has been pushing hard since 2003 to have the state repeal the 10 percent law.”

Indeed, in the 2009 legislative session, lawmakers carved out an exemption in the Top 10 Percent rule specifically for the UT-Austin campus, restricting the number of freshmen automatically admitted there to the top 7 percent of high school graduates.

The suit is being backed by Washington, D.C.-based nonprofit Project on Fair Representation, which at the onset of the case created a website called UT Not Fair, inviting other rejected applicants to UT to sign up on the suit, reported the Dallas Observer’s Unfair Park blog (“Wait, Doesn’t Everyone Get Into UT?“)

The website effort resulted in Rachel Multer Michalewicz of Buda joining Fisher as a plaintiff on the suit.

The case turned out to be complex and nuanced, with the presiding federal judge expressing frustration at “the lofty but somewhat ill-defined legal principles” articulated by the U.S. Supreme Court in Grutter, reported the Austin American-Statesman on May 20, 2008 (“Lawsuit seeks to bar university’s use of race, ethnicity“).

U.S. District Judge Sam Sparks said, “I feel like I’m out walking in a snowstorm barefoot,” according to the Statesman.

Sparks ended up ruling in favor of UT and dismissing the suit, according to the San Antonio Express-News on Aug. 18, 2009 (“Court upholds UT’s admissions process“). Sparks wrote that UT followed Grutter‘s precedence and that “UT’s consideration of race in admissions is narrowly tailored,” according to the article.

“The Texas solicitor general summarized this case best when he stated, ‘If the plaintiffs are right, Grutter is wrong,’” Sparks wrote in his decision, according to U.S. News & World Report’s The Paper Trail blog (“Court Upholds Texas Admissions Policy“).

On July 21, 2010, the Texas Tribune wrote an overview of the case now up before the 5th Circuit (“Affirmative Action Suit Challenges UT Admission Policy“). The Tribune reporter notes that affirmative action supporters are “nervous” about the case if it makes it to the Supreme Court because the court has grown more conservative since the 5-4 Grutter decision.

The UT student newspaper The Daily Texan noted on July 27 that, “The year after the Hopwood decision, the rates (of admission to UT Law School) dropped to 0.9 percent for blacks and 5.6 percent for Mexican-Americans. With the top 10 percent rule in place, those rates rose steadily to 4 and 8 percent, respectively, in 2004.” (“Court battle re-examines admittance policy of UT“)

Accompanying the article is an interview with Patricia Ohlendorf, UT’s vice president of legal affair (“UT vice president details ins, outs of top 10 percent rule“).

The Chronicle of Higher Education’s Innovations blog has a preview of the oral arguments of the case. (“Next Week’s Court Hearing on Affirmative Action“)

The Austin-American Statesman reported Aug. 1 (“Appeals court considering UT’s use of race in admissions“) that “the Obama administration, the National Association for the Advancement of Colored People and others have filed friend-of-the-court briefs defending UT’s policy, while the Pacific Legal Foundation, the Mountain States Legal Foundation and others have lined up with the plaintiffs.”

Ohlendorf said the 5th Circuit decision will probably take several months, according to the Statesman.

The Fisher case is the latest suit backed by the Project on Fair Representation and director Edward Blum, who cut his teeth in constitutional law with a 1996 Supreme Court case, where, following a failed 1992 bid for Congressional District 18 in Houston, he and other plaintiffs argued successfully that Texas’ congressional districts were gerrymandered unfairly based on race.

The nonprofit filed an amicus brief in two suits concerning affirmative action and public schools that made before the Supreme Court recently. The project also was involved in a Voting Rights Act challenge the Supreme Court heard in January 2009 and decided on in June 2009. (For coverage, see Election Law Blog’s “NAMUDNO Roundup.”)

On July 19, the Birmingham News reported that the nonprofit is providing free representation to Shelby County (Ala.) officials seeking to overturn parts of the VRA, requiring governmental bodies in some states (mostly Southern, including Texas) to seek federal approval before making any changes related to voting. (“U.S. set to defend Voting Rights Act against Shelby County challenge“)

(Photo: Flickr Creative Commons/alamosbasement)

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