Appeals court upholds race-based admissions at UT-Austin
A federal appeals court has upheld a race-based admission process employed by the University of Texas at Austin, striking down a request for a rehearing by two white students who were denied admission to UT in 2008. The students argued the university’s admissions policy violated their equal protection rights guaranteed by the 14th Amendment, student newspaper The Daily Texan reported.
The 9-7 vote produced five vocal dissenters including Chief Judge Edith Jones, who accused her colleagues of possessing, “an unachievable and unrealistic goal of racial diversity at the classroom level to support the university’s race-conscious policy,” according to the Houston Chronicle.
The Austin American-Statesman reported that the minority opinion is “a stinging dissent” that said the three-member panel had given “total deference to University administrators” when it should have applied “strict scrutiny” to the use of affirmative action.
The vote follows a January ruling by a three-judge 5th Circuit Court panel that upheld a previous decision by U.S. District Judge Sam Sparks, who ruled in favor of UT in 2009. Female plaintiffs Abigail Fisher and Rachel Michalewicz still have the opportunity to petition the U.S. Supreme Court. Patricia Ohlendorf, vice president for UT legal affairs, told The Daily Texan she is “confident in the University’s position” should the plaintiffs appeal to the U.S. Supreme Court due to, “favorable rulings so far and a legal team including the current and former solicitors general of Texas.” The Project on Fair Representation (PFR), a nonprofit legal defense fund that does not agree with race-based admission policy, financially backed the students’ suit.
PFR is an initiative of Donors Trust Inc., a Beltway-based nonprofit that also operates the Center for College Affordability and Productivity, as the Texas Independent has previously reported. Donors Trust specializes in accepting contributions then expending them on conservative causes based on the intent of the donors, who remain one step removed from the final recipients.
PFR has made headlines for its challenges of the Voting Rights Act, including the pending case Shelby County, Alabama v. Holder.
In the suit, the two students cite the state’s “Top 10 Percent Rule,” an admissions process that automatically admits the top 10 percent of a high school graduating class, as a mechanism already in place to ensure diversity and questioned the necessity of considering race in admissions in light of the rule. The measure, enacted in 1997, sought to increase minority enrollment as a result of a ban on race-based admission decided by a ruling in the Hopwood v. Texas affirmative action legal case the previous year. Six years later the Supreme Court upheld affirmative action at the University of Michigan’s Law School in 2003, wiping away the Hopwood decision and reenacting the race-based admission process.
UT has struggled with maintaining diversity among its student body population throughout the years. The university set a precedent in fall 2010, enrolling more non-white students as first-time freshman than white students, however, they may be merely playing a long game of catch up, according to a Texas State University study highlighting the detrimental impact on traditionally underrepresented minority enrollment catalyzed by the Hopwood case. While the total number of Black and Hispanic students steadily increased within most major academic departments prior to the ruling, the study found immediate significant drops among black and Hispanic enrollment following theHopwood decision. Additionally, research indicated the Top 10 Rule to be ineffective at offsetting Hopwood‘s impact by boosting minority inclusion, as the total Black and Hispanic enrollment numbers failed to increase with the implementation of the Top 10 Rule.
Similarly, an American Bar Association report focusing on the UT Law School found a dramatic drop in minority enrollment post-Hopwood. Black enrollment dropped more than 90 percent in the first year, from 38 students to four, and Mexican-American enrollment dropped nearly 60 percent, from 64 to 26. Without affirmative action, the author wrote, many law classes would have no African-American or Mexican-American students.