Guest post by Michael A. Olivas, discussing the case of Fisher v. University of Texas.
In several important respects, Fisher v. University of Texas breaks no conceptual ground or doctrinal ground since the 1978 Bakke case or the 2003 Grutter case, both of which upheld the modest use of race in college admissions. These cases remain the law of the land in admissions, subject to state actions taken by voters to limit the use of race in admissions, a practice ratified in the recent Schuette case. In that case, the US Supreme Court held that voters could determine such admissions policies and practices by ballot measure—a regrettable turn of events that politicizes college practices all the more.
But Fisher, the case of a disgruntled white applicant who was not admissible or admitted to the Austin campus of the University of Texas, either by the automatic Percentage Plan or by the comprehensive and holistic review, is an unnecessary case that never should have been brought or allowed. Abigail Fisher did not directly challenge the Percentage Plan—rather, she challenged the use of race in the holistic review process when the Plan was already in use. In other words, she did not object to the race-neutral admissions pathway, but to the comprehensive review that is constitutional under Bakke and Grutter.
SCOTUS determined that the trial court and the Fifth Circuit had not examined the extent to which the UT holistic process was “narrowly-tailored,” the Constitutional requirement that affirmative action be used only in a focused way, when other alternatives did not provide the diversity that is sought—and sent it back for such a review. That remand led to the trial court and the Circuit panel re-affirming the UT process.
While we do not know if the entire Circuit will accept the new analysis, or if SCOTUS will accept the more careful language of the remand, there has been considerable confusion about the Percentage Plan and its effect upon UT and the holistic review. Here, JHU Press readers will have access to some admissions insider baseball, as I examine and tell the back story of how the Percentage Plan came to be, how it has been misrepresented by opponents of affirmative action, and how it was even misunderstood by Justice Ruth Ginsberg. Justice Ginsburg’s dissent spares no snark in describing the Plan:
Petitioner urges that Texas’ Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.” Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage.
Given the mistaken racial-paternity assumed even by Justice Ginsburg in her dissent in the Fisher remand, I take this opportunity to elaborate on and correct the Percentage Plan record.
After Hopwood began to frag its way through Texas, State Representative Irma Rangel (D-Kingsville), the chair of the Texas House Committee on Higher Education, convened a small working group composed of Latino professors and attorneys from the Mexican American Legal Defense and Educational Fund (MALDEF) to advise her on a legislative response. Inasmuch as the decision had the effect of banning the use of race in admissions to the state’s public colleges, the group—which varied between six and ten members, and to which I belonged—met monthly in Austin to plot a completely race-neutral response. We began an intensive scholarly reading program, took note of legal and legislative developments in other states, particularly California, and undertook computer simulations to counter the immediate and detrimental effects of Hopwood.
After more than nine months of meetings, we settled on a refined version of the California Master Plan (“Master Plan”), a longstanding tiered model with open admission community colleges for freshman and sophomore classes, moderately selective junior-senior upper division institutions in the California State University System, and the more elite and selective University of California (“UC”) System, which drew from the top 12.5 percent of the state’s high schools under a complex UC-eligible formula that weighted grades and mandatory test scores. While the Master Plan was decades old and had been revised to accommodate the state’s growth and resources, UC campuses were still extremely competitive and bursting at the seams.
In contrast, Texas had a more decentralized plan, with over a dozen individual college systems, most with multiple campuses and no centralized admissions model. The University of Texas at Austin (UT-Austin), as the most selective and popular campus in that multiple-institution statewide system, faced a number of constraints; on the other hand, there were other campuses and systems that were under-capacity or could grow (unlike the more space-limited UC campuses, such as those in Berkeley and Los Angeles). There were symmetries, such as the very competitive nature of the flagship programs (particularly at the UT-Austin campus, which boasted one of the nation’s largest enrollments); limits on the number of full-time, first-time freshmen they could plausibly accept; competitive undergraduate majors such as Business and Engineering; and selective graduate and professional schools.
In our search to find a race-neutral alternative to Hopwood’s restrictions, we took note that the UT-Austin campus relied on a very small range of high schools that served as “feeder schools” to the campus. Some of these selected high schools sent almost twenty percent of their graduating class to the campus. We also found that a number of counties and high schools in the sprawling state were less-inclined to send their students to UT-Austin. We discovered more than two dozen counties that had not sent a successful applicant to UT-Austin in over a decade, particularly from the more remote eastern and western rural counties and schools. We did not take into account the racial character of those schools, although we certainly realized that a growing percentage of African American and Mexican American students were concentrated in the larger cities and, in the case of the Latino students, in the Rio Grande Valley, roughly along the state’s border with Mexico, in a swath from Laredo/Nuevo Leon East to Brownsville/Matamoros.
As a result of a MALDEF case, Texas had recently upgraded the border colleges and realigned them with either the UT or TAMU systems. However, the Texas Supreme Court subsequently overturned a lower court decision that had held that the State intentionally favored the more northern areas, harming Mexican-Americans who were concentrated along the border and in San Antonio. One authoritative case study of the LULAC v. Richards litigation characterized the unanimous Texas Supreme Court decision as “unsound” inasmuch as it ignored the “centrality of race and racism and the intersectionality of racism with other forms of oppression.” In a recent book chapter, I found the combination of the successful upgrading of border colleges and the Richards defeat to be “the antonym of a pyrrhic victory—perhaps a victory notwithstanding the verdict.”
The computer runs were most promising for adding Mexican-Americans and, to a lesser extent, African-Americans (who had access to several private historically black institutions and two public ones) under one scenario: an automatic admissions policy that replaced the SAT or ACT requirement with the condition of graduating from a state high school in the top twenty percent. We feared that such a program, even if only a small number of the eligible students enrolled, would swamp three or four of the flagship schools—perhaps UT-Austin, TAMU-College Station, the University of Houston, and UT-Dallas—and that a larger percentage of graduates attending a given campus would prove problematic in its own way.
Ultimately, we settled on the Top Ten Percent Plan (“Plan”), which guaranteed admission to high school graduates who were in the highest decile of their graduating classes. We sold the plan on broad participatory grounds and stressed the widespread notion that doing well in school was a good indicator of quality, one often incorporated into choices of valedictorian, and that high rank-in-class was often used as a proxy for college readiness. We successfully sold it to legislators by stressing the simplified process, one to be fairly applied across all schools, and one likely to result in a signal to high school students, school counselors and advisors, and parents. I recall one white rural legislator’s surprise when he was informed that no one from his district’s largest high school had been admitted into UT-Austin for over a quarter century, and I recall a pleasant discussion with a lawyer, who had litigated Hopwood and gone on to become an education attorney-advisor to then-Governor George W. Bush. As it turned out, he was from a small rural district, and he immediately offered to pitch the plan to the governor. Given his politics and litigation experience, I am confident he would never have supported a racial plan, nor would Governor Bush, who signed the Plan into law.
In a state where whites are a declining proportion and total number of the public school population, the Plan was sure to spread out the applicants and enrollees. But it was not at all clear it would do so disproportionately for students of color, and it did not ultimately do so. The after-the-fact quarterbacking that now seems afoot is simply wrong. This plan was not race-specific; rather, it was crafted to survive the hostile post-Hopwood politics and potential legal challenges, and it was intended to reduce the effect of the standardized tests on the system. To describe it as race-neutral is particularly appropriate in its as-applied optics, as over half of all students admitted under the Plan (now reduced to less than ten percent for UT-Austin, after the campus received an exemption on the grounds that the enrollment under the original Plan had swamped them and left them with no room for discretionary admits) have been white. In Texas, whites constitute only slightly more than thirty percent of the total public school enrollment. If Latinos did not drop out of school at such an alarming rate, the percentage of white students would be even lower.
Residential segregation in Texas is so pervasive that there are single-race high schools, but that is no counter to the race-neutrality of the Top Ten Percent Plan. To assert otherwise requires a hermetically-sealed perfect world where every school would be composed of the ideal percentage of students by group in the state. In my most nationalistic or nihilist moment, I would never claim that every unfair result is traceable to nativism or racial discrimination, but to the Abigail Fishers of the world, every minority student—a term to be used advisedly in Texas—is sitting in their seat or keeping them out. Indeed, Fisher is a special racial pleading, even as Abigail Fisher did not directly challenge the Plan. The mere existence of the Plan, which did not admit her, is evidence that the University of Texas must be using racial means to keep her out, even as Grutter allows the institution to employ racial admissions considerations in a modest way.
I end on this note. No matter the ultimate result of Fisher itself, I am confident that minority-related cases will be brought with regularity when whites are more readily recognized as not constituting the majority.
Michael A. Olivas is the William B. Bates Distinguished Chair in Law at the University of Houston Law Center and the author of 15 books, including Suing Alma Mater: Higher Education and the Courts, published by Johns Hopkins. He hosts a weekly NPR radio show, The Law of Rock and Roll.
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