Appeals Court to Weigh Race in Admissions

By Mark Walsh — July 29, 2010 2 min read
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A federal appeals court next week will take up a challenge to the University of Texas at Austin’s consideration of race in the admissions process for some undergraduate applicants.

The case presents the first major showdown after the U.S. Supreme Court upheld the limited use of race in college admissions in the 2003 case of Grutter v. Bollinger, but a differently composed high court curtailed race consideration in K-12 schools in the 2007 case of Parents Inolved in Communty Schools v. Seattle School District.

The Univesity of Texas was barred from taking race into account in admissions in the 1996 ruling known as Hopwood v. Texas. The state then adopted its “Top Ten Percent” policy, guaranteeing admission to any Texas state university to high school seniors in the state who finish in the top 10 percent of their classes.

After the Supreme Court’s 2003 Grutter decision, Texas kept its Top Ten Percent policy but reintstated the consideration of race for remaining openings in admissions. Race is one of several factors state universities take into account to promote racial and socioeconomic diversity in their admissions classes.

The policy was challenged by two white students, Abigail Fisher and Rachel Michalewicz, who were just outside the top 10 percent of their high school classes and argued that race played a factor in their rejection for admission to the University of Texas at Austin in 2008.

A federal district court upheld the policy last year under Grutter and the 14th Amendment’s equal-protection clause, ruling that the university has a compelling interest in attaining a diverse student body.

“As in Grutter, race is considered as part of a highly individualized, holistic review of every applicant that considers multiple factors that contribute to diversity aside from race or ethicity,” the district court said in an August 2009 ruling.

The U.S. Court of Appeals for the 5th Circuit, in New Orleans, will take up the white applicants’ appeal of that decision on Tuesday, Aug. 3.

The Obama administration has sided with Texas, telling the 5th Circuit in a friend-of-the-court brief that “the university has a compelling interest in attaining the level of student diversity necessary to fulfill its educational mission.”

“In view of the importance of diversity in educational institutions, the United States ... supports the efforts of school systems and post-secondary educational institutions that wish to develop admissions policies that endeavor to achieve the educational benefits of diversity in accordance with Grutter,” the administration’s brief states.

The University of Texas at Austin maintains a Web page with all the key legal briefs and rulings in the case.

The Texas Tribune wrote about the case recently, and on his blog at the Chronicle of Higher Education, Richard Kahlenberg of the Century Foundation previews the arguments.

A version of this news article first appeared in The School Law Blog.