Affirmative action in college admissions goes back before Supreme Court
US Supreme Court is taking an affirmative action case about the University of Texas admissions policy, which permits race to be a factor in deciding which applicants are admitted.
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Critics say Texas’s race-based plan violates the constitutional requirement that any use of race as a factor in admissions must be narrowly focused. They say the goal of achieving a critical mass of minority students in every classroom opens the door to a perpetual, ever-expanding use of race in college admissions.Skip to next paragraph
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A dissenting appeals court judge said the attempt to achieve diversity at the classroom level opens the door to quotas, in effect, in undergraduate majors in which minority students are perceived to be underrepresented.
“Will the university accept this ‘goal’ as carte blanche to add minorities until a ‘critical mass’ chooses nuclear physics as a major?” asked Chief Judge Edith Jones of the Fifth US Circuit Court of Appeals. “Will classroom diversity ‘suffer’ in areas like applied math, kinesiology, chemistry, Farsi, or hundreds of other subjects if, by chance, few or no students of a certain race are enrolled?”
A federal judge and a three-judge panel of the Fifth Circuit upheld Texas’s race-conscious admissions plan. They said it comported with requirements established in the Supreme Court’s 2003 Michigan Law School decision.
“Considering UT’s admissions system in its historical context, it is evident that the efforts of the University have been studied, serious, and of high purpose, lending support to a constitutionally protected zone of discretion,” wrote appeals court Judge Patrick Higginbotham, upholding the program.
Judge Higginbotham added that “courts must afford a measure of deference to the university’s good faith determination that certain race-conscious measures are necessary.”
The full New Orleans-based Fifth Circuit split sharply over whether the case should be reargued before the entire appeals court. Seven judges voted to reconsider the decision. Nine judges voted to allow the three-judge panel’s decision to stand.
In her dissent, Chief Judge Jones accused the panel of “judicial abdication” for failing to subject the Texas plan to aggressive constitutional scrutiny. She said the Top Ten Percent Law had achieved minority enrollment in excess of 20 percent without resort to race-based methods. In contrast, the additional minority enrollment achieved under Texas’s race-conscious program was “tiny, and far from ‘indispensable.’ “
“It is one thing for the panel to accept ‘diversity’ and achieving a ‘critical mass’ of preferred minority students as acceptable university goals,” Jones wrote. “It is quite another to approve gratuitous racial preferences when a race-neutral policy has resulted in over one-fifth of university entrants being African-American or Hispanic.”
In 2008, the year Fisher submitted her application, 29,501 students applied to the University of Texas. Of those, 12,843 were admitted. Roughly half – 6,715 – eventually enrolled for classes.
Of the 6,715 enrolled students, 6,322 arrived from Texas high schools. The Top Ten Percent Law produced 5,114 of those students for admission.
That left approximately 1,200 spots open for some 16,000 Texas students who did not place in the top 10 percent of their high school classes. The competition for those spots was ferocious.
The university’s supplemental race-conscious admissions program admitted 58 African-American candidates and 158 Hispanic candidates.
In comparison, the Top Ten Percent program admitted 305 African-American students and 1,164 Hispanic students without using race as a factor.
“The university was able to obtain approximately 96 percent of the African-American and Hispanic students enrolled in the 2008 entering in-state freshman class using race-neutral means,” wrote Judge Emelio Garza, in a concurrence to the original decision by the three appellate court judges.
Judge Garza agreed with the outcome in the case given the Supreme Court’s Michigan precedent, but he disagreed with the underlying precedent. He said the university’s race-conscious program had achieved “an infinitesimal impact on critical mass [of minorities] in the student body as a whole.”
Garza said that under those circumstances there was not a compelling reason to justify the use of race in admissions, nor was such use narrowly tailored as required by the Constitution.
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