Bloomberg News

University of Texas Asks Appeals Court to Allow Race Preferences

November 13, 2013

The University of Texas will ask an appeals court to allow continued race-conscious admissions that the U.S. Supreme Court called into question over a white girl’s claim she was rejected in favor of less-qualified minorities.

Both sides declared victory in June after the high court vacated lower-court rulings in the university’s favor without invalidating UT’s policy outright. The justices ordered the U.S. Court of Appeals in New Orleans to scrutinize UT’s affirmative-action program again to determine whether the school had exhausted “race neutral alternatives.”

A panel of three judges from the court will hear arguments today in Austin to decide whether UT’s racial-preference policy is “narrowly tailored” to achieve the educational benefits of a diverse student body, as defined by UT and questioned by the Supreme Court. UT, Texas’s flagship public university, uses race as a factor in admitting about 25 percent of its freshmen.

“For seven years, UT tried all the key race-neutral tools touted” by the plaintiff as ways to increase minority enrollment “before it finally added race to its holistic admissions plan in 2004,” the university said in a filing last month.

Since UT began letting race play “a nuanced and limited roll,” minority enrollment has increased, although not to the point the university believes minorities have achieved “critical mass” on its Austin campus, UT attorneys wrote in the filing.

Abigail Fisher, a white student from the Houston area, sued UT after she was denied admission to its 2008 freshman class. A district court judge ruled in 2009 that the university was within its legal rights to consider race as part of a student’s “full file” of qualifications beyond grades and class rankings.

Top Tier

In response to a previous Supreme Court ruling, Texas implemented a policy guaranteeing admission to a public university for every high-school senior graduating in the top 10 percent of the class. UT was admitting as much as 75 percent of its freshmen class under what’s known as the Top 10 percent rule the year Fisher applied.

Fisher’s lawyers claim UT had already admitted enough minority students to reach “critical mass” and attain a diverse student body by the time it violated Fisher’s constitutional rights by considering race in evaluating her application. UT’s 2008 enrollment was more than 40 percent minority, according to court records.

“The Top 10 percent law has made (and continues to make) a far greater contribution to racial diversity than UT’s racial preferences ever could,” Fisher’s lawyers said. “Once UT enrolls a critical mass of underrepresented minority students, it is no longer necessary, and thus no longer permissible, to discriminate among applicants on the basis of race.”

‘Critical Mass’

“UT does not believe it failed to enroll a critical mass of minority students –- it failed to enroll enough of the minorities it prefers,” Fisher’s lawyers said.

The Justice Department filed court papers largely supporting UT’s right to use race as a limited factor in filling the part of its class reserved for students who don’t rank in their high schools’ top percentile.

The government asked the judges to examine UT’s claim that it hasn’t yet achieved “critical mass” in minority enrollment, which allows the school to consider race to ensure the educational benefits of diversity, UT’s stated goal.

The court should make sure UT’s evidence “stands for the propositions the university says it does,” the Justice Department said, rather than as justification for achieving impermissible racial balancing, as UT’s critics claim.

Divergent Views

Scores of educators, universities, politicians and civil rights activists have submitted opinions supporting and decrying UT’s use of racial preferences. Hispanic, African-American and Asian advocacy groups are aligned on both sides, with some arguing the merits of affirmative action to achieve racial diversity, and others claiming race-conscious admission policies set some students up for failure.

UT urged the court to dismiss Fisher’s claims as irrelevant, since the girl graduated last year from a different university and didn’t sue on behalf of a class of individuals who could benefit from a different admission standard. UT has also questioned the validity of Fisher’s case by asserting she didn’t qualify for admission even if race hadn’t been a factor.

The case is Fisher v. University of Texas at Austin, 09-50822, U.S. Court of Appeals for the Fifth Circuit (New Orleans).

To contact the reporter on this story: Laurel Brubaker Calkins in Houston at

To contact the editor responsible for this story: Michael Hytha at

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