The University of Texas filed a 55-page brief with the Supreme Court this week, clarifying how race factors in to its admissions process. The filing is a direct response to a lawsuit challenging the university’s admissions policy. The case, Fisher v. University of Texas at Austin is one of the biggest on the court’s docket next year. In 2008, high school senior Abigail Fisher, a white student from Sugar Land, sued UT after she was denied admission to the incoming freshman class. She maintained that less qualified minority candidates were admitted ahead of her.
Here’s what you need to know about the case and UT’s admissions policies ahead of the oral arguments, which are slated for October 10.
A brief history of UT’s admissions policy
In their brief, UT’s lawyers give the Court a granular look at the university’s admissions policies over time. The bulk of UT’s applicants (sixty to eighty percent) are admitted through the top ten percent law, enacted by the state legislature in 1997 in response to the Hopwood v. Texas case in which the 5th Circuit Court of Appeals barred the university from using affirmative action in admissions. From 1998 to 2004, the remaining places in the incoming freshman class were selected using a “full-file review” process that “considered numerous individual characteristics (but not race.)”
But in 2003, the Supreme Court ruled in Grutter v. Bollinger that the University of Michigan Law School had a “compelling interest” in having a diverse student body, effectively overturning Hopwood v. Texas. In response to Grutter, UT tweaked its admission policy in 2004 to “allow for the consideration of race in the context of the holistic review already conducted for students not admitted under the top 10% law.” Under this new policy, race is considered as one of many factors and is not “assigned any independent weight” and the school does not maintain “a quota or target for any racial group.”
So, how are candidates outside of the top ten percent selected today?
UT’s conducts a “holistic review” of every application in which candidates are assigned an “academic index” score or PA (consisting of class rank and SAT scores) and a “Personal Achievement Index” score or PAI (based on two essays scored on a race-blind basis and a “Personal Achievement Score,” or PAS. The PAS is where race is taken into account:
The PAS score ranges from 1 to 6 as well, and is based on holistic consideration of six equally-weighted factors: leadership potential, extracurricular activities, honors and awards, work experience, community service, and special circumstances. The “special circumstances” factor is broken down into seven attributes, including socioeconomic considerations, and—as of 2005—an applicant’s race. Race is one of seven components of a single factor in the PAS score, which comprises one third of the PAI, which is one of two numerical values (PAI and AI) that places a student on the admissions grid, from which students are admitted race-blind in groups. In other words, race is “a factor of a factor of a factor of a factor” in UT’s holistic review.
Once the school has both a AI and a PAI score for an applicant, the two points are plotted on a matrix. Admissions officers then “draw a stair-step line on the matrix, dividing the cells of applicants who will be admitted from those that will be denied. For each cell, admission is an all-or-nothing proposition: all the applicants within a cell are either admitted or denied.”
UT maintains that this “modest consideration of race” is fair and backed up by the Court’s decision in Grutter. The Court, UT’s lawyers argue, has “recognized that universities have a compelling interest in promoting student body diversity, and that a university may consider the race of applicants in an individualized and modest manner— such that race is just one of many characteristics that form the mosaic presented by an applicant’s file.”
What is UT hoping to accomplish?
Here’s how the brief explains UT’s goal:
Each year, UT strives to assemble a class that is exceptionally talented and well-prepared for UT’s rigorous academic environment. It is also a “‘major priority’” that each class be well-rounded and diverse. UT has a “broad vision of diversity,” which looks to a wide variety of individual characteristics—including “an applicant’s culture; language; family; educational, geographic, and socioeconomic background; work, volunteer, or internship experiences; leadership experiences”; special artistic or other talents, as well as race and ethnicity. UT has set—and seeks to meet—“a ‘high standard for diversity.’”
A diverse student body is “indispensable” to UT’s mission to educate and train the future leaders of Texas and America. UT has learned through experience that diversity has invaluable educational benefits. These benefits include, but are not limited to, promoting cross-racial understanding; breaking down racial, ethnic, and geographic stereotypes; and creating an environment where students do not feel like spokespersons for their race. Diversity improves academic outcomes and better prepares students to become the next generation of leaders in an increasingly diverse society.
What does Abigail Fisher argue?
Abigail Fisher, who did not fall into the top ten percent of her high school class at Sugar Land’s Austin High School, applied to enter UT’s Fall 2008 class with a 1180 out of 1600 SAT score and a cumulative 3.59 GPA. The crux of Fisher’s lawsuit? According to the New Yorker‘s Jeffrey Toobin, it is “based on a claim that any consideration of race by a university in admissions violates the Equal Protection Clause of the Fourteenth Amendment.” Fisher’s lawyers also argue that UT’s top 10 percent rule creates enough diversity in the incoming class.
Fisher was denied entry into the school’s Fall 2008 class as well as a summer program that allows gives provisional admission to some of those who did not make it into the fall class. The brief notes that “168 African-American and Hispanic applicants in this pool who had combined AI/PAI scores identical to or higher than petitioner’s were denied admission to the summer program.” Fisher was admitted to Louisiana State University and graduated in May.
What are UT’s critics saying?
At the National Review, John S. Rosenberg wrote a 1,600-word takedown of UT’s brief:
From a careful reading of the convoluted brief that the University of Texas filed this week in Fisher v. University of Texas, one thing is clear: The university spent a fortune building a byzantine admissions edifice whose purpose is to disguise how, and how much, the “holistic review” process that it uses in making decisions about which students to admit is race-based. …
Year after year this “factor of a factor of a factor of a factor” always produces a substantial number of minority applicants who presumably would not have been admitted but for their race or ethnicity. Even more mysterious, despite all the ink that this octopus of an admissions office has squirted over its Rube Goldberg process, it emerges that Texas somehow does know how heavy its thumb is on the racial scale. Otherwise, how could it confidently assert that of “the 728 African-Americans offered admission to the 2008 class, 146 — or 20% — were admitted through full-file review” (that is, outside the top–10 percent policy)? Or that the figure for Hispanic applicants was 15 percent?
Rosenberg notes that UT’s brief is clearly targeting Justice Anthony Kennedy, who is viewed as a crucial swing vote in the case.
Where are the justices likely to stand?
The Chronicle of Higher Education‘s Peter Schmidt addressed this in a Wednesday story. Elena Kagan has recused herself from the case because she filed a brief in support of the university ahead of the case’s hearing by the U.S. Court of Appeals for the Fifth Circuit. He continues:
Of the court’s eight remaining members, four—Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas—are regarded as so skeptical of race-conscious government policies they probably will seek to abandon the court’s 2003 Grutter v. Bollinger decision, which declared that narrowly tailored race-conscious admission policies can serve a compelling government interest. Three others, Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor, are seen as likely to fully support Texas.
Justice Kennedy stands out as a swing vote because in the Grutter decision he accepted the idea that such policies provide educational benefits that serve a government interest, but rejected the policy at issue, from the University of Michigan’s law school.
In the separate dissent he penned as part of the court’s 5-4 Grutter ruling, Justice Kennedy argued that the Michigan law school gave too much weight to race for its policy to be considered narrowly tailored. He accused the law school of using race as “an automatic factor” in most admission decisions. Citing evidence that the law school’s admissions officers consulted daily reports breaking down the racial composition of each incoming class, he argued that the school was using “numerical goals indistinguishable from quotas,” which the Supreme Court had struck down in 1978 ruling in Regents of the University of California v. Bakke, involving a medical school.
Rosenberg, in his National Review piece, pointed out that “the Texas brief insists repeatedly (I count about 15 times) that its system for assessing applicants falls outside Kennedy’s definition of unacceptably race-based admissions policies.”
WATCH UT-Austin President Bill Powers discuss the brief: