• September 4, 2015

Appeals Court Upholds Race-Conscious Admissions at U. of Texas

A federal appeals court panel on Tuesday upheld the use of race-conscious admissions by the University of Texas at Austin. In doing so, the judges rejected the argument that the policy is unconstitutional because state lawmakers had created a viable, race-neutral alternative to it when they mandated that public universities in Texas admit students in the top 10th of their high-school classes.

Although the three-judge panel of the U.S. Court of Appeals for the Fifth Circuit was unanimous in ruling that the university's policy complies with guidelines for colleges set forth by the U.S, Supreme Court, the judges were deeply divided in their reasoning.

The majority opinion, written by Judge Patrick E. Higgenbotham, attacked the state's admission guarantee based on class rank, known as the "Top 10 Percent Law," as "a blunt tool" of arguably questionable constitutionality. But a second judge, Carolyn Dineen King, refused in a concurring opinion to endorse Judge Higgenbotham's critique of the admissions guarantee, arguing that its wisdom and validity were not even considered by the court. And a third judge, Emilio M. Garza, issued a concurring opinion that heavily criticized the chief Supreme Court precedent the panel felt bound by in ruling in favor of Texas: the high court's 2003 Grutter v. Bollinger decision upholding the use of race-conscious admissions by the University of Michigan's law school.

In the short term, at least, the three judges' ruling has the effect of leaving intact a 2009 U.S. District Court decision dismissing the lawsuit, which had been brought by two white applicants that the university had rejected.

Patricia C. Ohlendorf, the Austin campus's vice president for legal affairs, said officials there were "extremely pleased" with the appeals panel's ruling because "the university has always maintained that its undergraduate admissions policy is constitutional and is consistent with the U.S. Supreme Court's guidance in Grutter v. Bollinger."

Contributing to the Debate

In the long term, however, Tuesday's ruling, with its sharply differing opinions, could inspire a wide-ranging debate in the likely event that the decision is appealed.

Edward J. Blum, director of the Project on Fair Representation, a group that helped represent the plaintiffs, said he was not sure whether his lawyers would appeal the three-judge panel's ruling to the full Fifth Circuit or instead ask the U.S. Supreme Court to take up the case. "The one thing we are obviously going to do is take it to a higher court," he said.

The majority opinion by Judge Higgenbotham characterized the race-conscious admissions policy that the University of Texas adopted after the Grutter decision as narrowly tailored, effective, and closely adhering to the Grutter decision's requirement that public colleges consider applicants' race or ethnicity only in the context of a holistic review of individual students.

Rather than challenging the university's consideration of race, Judge Higgenbotham aimed his criticism at the state's top-10-percent law, arguing that the admissions guarantee "is in many ways at war" with the pursuit of diversity endorsed by the Supreme Court in Grutter. He based that assessment partly on the law's negative impact on minority students with high-school class ranks below the top 10th of their class, and partly on university data showing that many of those admitted under the policy are clustered in certain programs, such as social work and education.

Judge Garza's opinion said, "I concur in the majority opinion because, despite my belief that Grutter represents a digression in the course of constitutional law, today's opinion is a faithful, if unfortunate, application of that misstep." It said Supreme Court Justice Sandra Day O'Connor's conclusion, in the opinion she wrote for the Grutter majority, that racial diversity yields educational benefits "rests almost entirely on intuitive appeal rather than concrete evidence." And it argues that the Austin campus's consideration of race brings in so few additional minority students that it fails to achieve its stated ends.

The opinion written by Judge Higgenbotham and signed by the two others makes clear that the three expect Texas's admission policy to be under legal scrutiny for a long time to come. "In this dynamic environment," it says, "our conclusions should not be taken to mean that [the University of Texas] is immune from its obligation to recalibrate its dual system of admissions as needed, and we cannot bless the university's race-conscious admissions program in perpetuity."


1. nuffsed - January 19, 2011 at 08:37 am

There seems to be an assumption on U.T. Austin's part and the Court's part that minorities are incapable of achieving a place the top 10 percent of their schools. Social Darwinism at its finest. Ethnicity has nothing to do with ability. I have observed lots of students, white and otherwise, who underachieve and others who work hard and excel. If there's any factor at play here it's social. Maybe it's "uncool" to excel academically or maybe it's just not deemed important in their home culture. We need to be reaching out to these kids when they are young, not trying to reengineer the results after the fact.

2. phd_seeking_mom - January 19, 2011 at 10:25 am

nuffsed: You are right: Ethnicity has nothing to do with ability; however, what you failed to consider in your analysis is that, given the standardized nature of schooling and testing, the American educational system and curriculum was historically, and is currently, designed to benefit a certain segment of the population: The White, middle-class. Therefore, it may seem on paper that "minorities" aren't achieving in school (based on the results of biased, standardized tests) and are thus severely underrepresented in the "Top 10%" of schools. The "Top 10% Law" at UT is effectively serving as a form of institutionalized racism (or ethnicism)and is not only preventing racial and ethnic diversity at UT, but is also denying many well-deserving and capable "minority" students the opportunity to pursue advanced degrees at a high-ranking univeristy.

And btw, it will be difficult for you to reach out to "these kids" while maintaining such deficit views of "home cultures" that are different from the dominant mainstream. There are very few, if any, parents who do not want their kids to get a good education and succeed. Instead of "reaching out to these kids," our efforts may be better directed toward the questioning and redesigning of our biased educational system and the reconsidering of what really counts as achievement. The simple fact that we rank students ensures that there is always someone at the bottom.

3. the_jayhawk - January 19, 2011 at 10:43 am

nuffsed: I am not certain that we can determine what is in the heads of those running Texas at the time the 10% rule was passed. What is clear is that it was/is an end around the previous policy that was found to be illegal. I taught "race relations" for 32 years before retiring recently and often used this analogy: We cannot improve the skills of height-challenged (that's short for those unafraid of the PC police) basketball players by putting them on the team irregardless of their skill levels. The next generation will just assume there is a spot for them.

I cannot follow the logic of phd_mom. The Texas plan is not institutionalized racism because it impedes diversity at UT. The plan does not limit admission to the "top 10% of schools" as your statement implies. As I understand it, the top 10% of graduates from all high schools in Texas are guaranteed admission. That means the top 10% of graduates at "underperforming" high schools are treated equally to the top 10% of the top-tier schools. The "problem" is that the top 10% of graduates from the former may be in the lower 50% of graduates state-wide. The effect is to undercut the performances of students from ethnic groups that perform (on average) at higher levels than "targeted minorities."

4. 3rdtyrant - January 19, 2011 at 10:43 am

Finally, my whiteness will be adequately protected from race-based incursions on my rights as a US citizen.

5. seraphpendragon - January 19, 2011 at 10:43 am

How can you say you're being "race-neutral" and all that, and yet follow a "race-conscious admissions"? I always thought that if you studied hard and got good grades, and were willing to pay the fees...you'd go to college. If race has nothing to do with it, maybe it should really have nothing to do with it.

6. trubluetier2 - January 19, 2011 at 11:10 am

seraphpendragon, higher ed must be race-conscious in order to be realistic about the fact that education prior to college is structured by race. I was in grad school at UT with someone whose experience showed the fallacy in what you "always thought." He studied hard, got good grades, and was willing to pay the fees.... but couldn't go to UT because at the time it was segregated and he was the wrong color.

The main problem with the top-10% plan was that it guaranteed diversity only by relying on the continued segregation of high schools.

Those implementing race-conscious policies correctly recognize that opportunities to achieve merit as it is conventionally measured are not distributed equally in society. These traditional measures (SAT, GPA, etc.) also are not reliable or unique predictors of academic success in higher education or social contribution afterwards.

7. amnirov - January 19, 2011 at 12:12 pm

Race should have nothing to do with university admissions.

8. anderskc - January 19, 2011 at 01:12 pm

As a university director of admissions, I am confronted by this issue every day, and I admit to feeling ambivalent about implementing my college's policies. Although we say we may use race as only factor in a holistic review, the dirty little secret is that of COURSE it is the main factor when evaluating otherwise non-admissible candidates. We may dance around it or talk about socio-economic status, but it is race. Pure and simple. The downside is that I then see the ramifications on students who want to earn their admission, not have it given to them based on skin color. What message does that send? We don't think you can achieve on your own, so we Whiteys are giving this to you? It's liberal guilt.

Then again, we have the other exceptions for athletics, children of alumni or donors, etc. They all think THEY deserve special consideration, but of course, would disagree with race as a consideration.

Can you tell I'm ambivalent??

9. jhwarner - January 19, 2011 at 02:56 pm

What about standardized tests are biased? The fact that they require students to be able to read, write, and do math well? Algebra and geometry are race neutral. Nothing about a student's skin-color makes him any worse at math. In fact, Asian-Americans (a minority group) are some of the highest scoring math students on standardized test. Sure, poor people are less likely to do well in school (for a variety of socio-economic reasons), but we are talking about race. There is nothing wrong with basic admissions decisions on academic excellence measured by standardized tests and GPA. Putting race into the equation is unfair to both white and black students.

10. darkmunn07 - January 19, 2011 at 03:04 pm

The evolution of the TX 10% policy and the continued need to consider race in addition to the plan strikes me as an important lesson for increasingly selective large public universities that (correctly) want to maintain appropriate levels of racial diversity.

As has been noted above, the 10% plan was designed and sold in the TX legislature as a way to ensure racial diversity - guaranteeing that the top of the class from "majority-minority" high schools (predominately in "majority-minority" districts with minority legislators) would be represented despite the fact that other indicators (e.g. test scores) that might lag behind the top of the class at whiter/more affluent schools.

As is to be expected, such a blunt policy - especially at a school as desirable as UT Austin - had all sorts of unintended consequences. The administration rightly recognized that they would need to continue to use race-sensitive admissions policies to keep the 10% rule from spinning out of control on its own. Doing this type of work, however, on such a large scale is a huge undertaking requiring a substantial amount of manpower.

Selective private (and some public) universities have been doing this type of evaluation for years and know that there is no single uniform metric (class rank, SAT, AP scores) that can substitute for comprehensive in-depth evaluation of every applicant. If any university hopes to be both selective AND diverse, it needs holistic evaluation, no matter how large its student body. Regardless of what state legislators or cost-conscious administrators say, there is no easy way to replace the complex work of real people hashing out long hours in admissions committees.

TX should look to the experiences of the University of Georgia in the wake of the HOPE scholarship and the legal back and forth of the last decade. When the feds struck down UGA's AA policy, Black representation plummeted. After Grutter, a new holistic policy brought the numbers back up - but only when it was combined with a large scale institutional effort to increase representation through outreach and recruitment. When it comes to admissions, you are fooling yourself if you think any one policy or indicator can do the work of conscientious admissions professionals.

11. latino - January 19, 2011 at 03:17 pm

Race is a heavy component on how institutions and democracy have been built in the USA, and education, as an institution, is also the product of inequality and cost of opportunities. It is not because you consider yourself under a specific race you belong to a race, but because how the system deals with your characteristics through your life and how you are or not conscious that some types receive still different treatment in this society. If race is not a component in education, just check what some universities had as policies on color until the seventies, or today how Arizona deal with race.
Moreover, when you declare illegal to have programs that demand race consciousness and action, you declare that rule under an illusionary perception that your system is equal for all; you cannot erase living history. I believe that an educator cannot take this component on the side in any class, whenever you guide students or teach your classes, it is your duty to put altogether building a nation that still has historical wounds and an enormous amount of misery and poverty among certain races.

12. fizmath - January 19, 2011 at 04:15 pm

If the schools favor whites and the test are biased, then why are 20% of Indian Americans millionaires?

13. fizmath - January 19, 2011 at 04:25 pm

If schools and tests favor whites then why is it that 20% of Indian Americans are millionaires?

14. seraphpendragon - January 19, 2011 at 04:40 pm

I still don't buy it. I don't care about the past, or any of the other excuses people who support this stuff try to put forth. Being admitted or denied access purely because of race is discriminatory. Just because it hurts the majority doesn't make it right. I'm coming in a little late to this story, but it sounds like two white students that are otherwise qualified to be admitted are denied because they are white - well, specifically, because minorities had to be admitted instead, lest the university be seen as being unfair. What a glorious day...when we are no longer judged by the content of our character, but by the color of our skin. >_>

15. crowbill - January 19, 2011 at 06:19 pm

If memory serves, there was a report in the Chronicle sometime back describing how the "top 10% students" in Texas might need extra help at the start of their university studies but tended to graduate in higher percentages and with higher GPAs than students admitted under the "normal" process. Besides, success under adverse conditions is such an American ideal that there seemed to be widespread support for admitting top 10% students--whether black, brown, or white--because they darn well earned it! One night want to consider that some (not all) who oppose the 10% rule might want their middle-class and upper-class cohorts taken care of at the expense of the striving poor.

16. huff0104 - January 19, 2011 at 07:46 pm

"The "top 10% students" in Texas might need extra help at the start of their university studies but tended to graduate in higher percentages and with higher GPAs than students admitted under the "normal" process."
Thanks for citing actual research "crowbill." Many of the "ten percenters" tend to be motivated students from poor performing (urban and rural) schools who catch up when given a chance at a major university. Keep in mind that in Texas most of the urban public schools and most schools in the southern part of the state are predominately minority schools, so the top 10% are also minorities.
BTW - The major opposition to the 10% rule in Texas comes from parents of students at high performing, wealthy suburban schools
who want to go to the University of Texas, not from the minority community or, for that matter, from parents in poor rural school districts whose brightest kids get to go to UT if they wish.

17. iloveaparade - January 20, 2011 at 08:47 am

fizmath - what does that have to do with bias? Let's pretend that statistic is actually true - maybe NAs are just creative people, or, and this is what you're getting at, "they are all rich from casinos!" Not all tribes have casinos, not all tribes distribute funds from casinos.

18. kayt4079 - January 20, 2011 at 10:07 am

Can we stop for a moment to think that if the two white students in this discussion were unquestionably qualified for admission, would they have needed a lawsuit? Regardless of who may have been chosen besides them... Every institution has to debate over students on the borderline, and each instition has to decide how they will choose. If all other admission criteria are equal, then let's choose the person that had the extra reason they shouldn't have succeeded, whatever it may be in that particular scenario.

19. nuffsed - January 20, 2011 at 12:16 pm

You are buying into the Social Darwinism crap as well. You cite the rote argument of cultural bias in the education system but that argument fails to consider the performance of first generation Asian-American students. They come from homes that are as much or even more "disadvantaged" in terms of language and culture than African-Americans or Latinos, and yet they generally excel in our education system in high percentages, outperforming most whites even, because they generally come from a culture that values education and hard work.

20. goxewu - January 20, 2011 at 02:19 pm

Re #18: How does kayt4079 know that race is only used as a tiebreaker when "all other admission criteria are equal," or as a small criterion on the "borderline?" How does kayt4079 know that it's race (not economic class or some other demographic) that's "the extra reason why [a particular candidate for admission] shouldn't have succeeded"? How does kayt4079 know that the African-American who needs the extra points of race to be admitted isn't another pampered middle-class kid who didn't do that well on the SATs and GPA because of video games and hanging out during high school?

And this only-losers-have-to-bring-lawsuits reasoning is repulsive. How would kayt4049 feel about using it, for instance, in a suit in which two female employees sued because they thought they were discriminatorially passed over for promotion so that two males, slightly less qualified than they, could have the jobs? (And in the university's case, the school ADMITS it's being discriminatory in regard to race.) There, I stopped for a moment and thought...maybe more than kayt4079 would have liked.

21. mjohnso9 - January 21, 2011 at 06:13 pm

Apparently nuffsed hasn't heard of the "model minority myth".

22. raymond_j_ritchie - January 23, 2011 at 09:53 pm

I know that americans generally do not think this way but I think it is time they did.
The two students rejected by the Uni of Texas on the basis of being the wrong race should vote with their feet and get their education in another country, apply for residency and take out citizenship. I suggest Canada, Australia, New Zealand or Britain.
#1 The Uni of Texas is funded by your taxes but rejected you on the basis of race which you have no redress for,
#2 You correctly appealed to the legal system (which is funded by your taxes) and yet it upheld denial of your access to higher education,
#3 Your elected representatives (salaried by your taxes) did not support you as a citizen.
From #1, 2 & 3 the conclusion is draw is that you are paying taxes to a nation state that is not serving you as a citizen. The american state is not living up to the bargain between the ruler and the ruled and so you should pack up and leave. The sooner the better.

By taking out citizenship in another country your new country will benefit from your education, assets, language, culture and tax revenue and might appreciate you. When you have gained citizenship politely hand in your US passport at the nearest consulate.

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