The admissions policies of the University of Texas now before the Supreme Court in Fisher v. University of Texas demonstrate how dramatically affirmative action has changed. Once a device for remediating past racial discrimination, the focus has shifted to fostering diversity. Indeed, the nature of the diversity sought to be fostered has itself changed.
The University of Texas has a two-tiered admissions system. In the first tier, any student who graduates in the top tier (roughly the top ten percent) of his or her class in a Texas high school automatically qualifies for admission. Approximately seventy five percent of the entering class at Texas is filled under this first-tier approach. Given the racial and ethnic concentrations in many geographic areas of Texas, this guarantees African-American and Hispanic students a significant number of places in the entering class at the University of Texas. The New York Times reports that the current entering class was 26 percent Hispanic and six percent African American.
The diversity achieved under this program was not enough for the university, however. At the oral argument held yesterday in the Supreme Court, the lawyer for the university stated that, given the legacy of racial segregation in Texas, “the minorities who are admitted tend to come from segregated, racially-identifiable schools.” As such, the top ten percent program is insufficient because “we want minorities from different backgrounds” who have “different experiences.” The example used in the briefing was that of a child of successful minority parents who were professionals in Dallas. That child, who may have done well in a very good school in the Dallas suburbs, but fallen short of the top ten percent, would be favored in the second tier of Texas’ admissions policies because her race or ethnicity would be counted as a positive factor on the admissions scale.
Justice Alito questioned whether it was fair to give “a leg-up” to such an applicant at the expense of “an Asian or a white applicant whose parents are absolutely average in terms of education and income?” Justice Kennedy (who in all likelihood will be the deciding vote here) observed that this is a race-based approach, noting that “You want underprivileged of a certain race and privileged of a certain race. So that’s race.”
The University of Texas argued that the second-tier admissions are done on a “holistic” approach, reviewing the entire background and experiences of the individual applicants, and that the preference given to certain racial and ethnic groups fosters a “critical mass” of minority students at the classroom level. What is clear, however, is that other groups are not given this preference and that may be enough to cause the second-tier approach to be declared an unconstitutional racial preference.
For a review of the Supreme Court’s prior rulings on college admissions policies, see my Shaping America: The Supreme Court and American Society (University of South Carolina Press, 2009), at 215-223.