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Appeals Court to Consider Use of Race in UT’s Admissions Policies

The New Orleans-based 5th U.S. Circuit Court of Appeals will consider today whether the University of Texas at Austin’s use of race and ethnicity in its admissions policy violates the law.

Plaintiffs Abigail Fisher and Rachel Michalewicz first filed a lawsuit against the university in 2008, claiming that its race-conscious policy violated their civil and constitutional rights. It is the first major challenge of an institution’s affirmative action policy since the U.S. Supreme Court upheld a challenge to the affirmative action program at the University of Michigan’s law school in Grutter v. Bollinger.   

In 2009, the U.S. District Court for the Western District of Texas upheld Grutter, writing in its opinion that as long as it “remains good law, UT’s current admissions program remains constitutional.” But Edward Blum, director of the Washington-based Project on Fair Representation, which is helping to pay the plaintiffs’ legal bills, believes the opposite is true. He said that UT’s use of race and ethnicity “falls outside of the parameters where race is allowed to be used,” the Associated Press has reported.

Josh Civin, an associate counsel for the NAACP Legal and Defense Fund will have five minutes to argue on behalf of itself and the university’s Black Students Alliance. The Obama administration also will file a friend-of-the-court brief in support of the university’s policy.

“We will emphasize the significant and real importance of the consideration of race for African-American and Hispanic students, in particular at UT, by focusing on the limited enrollment and isolation experienced by those students during the eight-year period before [it] decided to use race as a factor for its 2005 entering class,” Civin said.

Further, it is critical that a flagship university in a diverse state train and educate students to become leaders there, which is a critical part of UT Austin’s mission, according to Civin.

Texas has a decades-long history of racial tension over university admissions, beginning with the UT law school’s refusal to admit Heman Sweatt, a Black man who’d been rejected because of his race in the 1940s. After the school’s affirmative action program was struck down in 1996 in the case known as Hopwood, the Texas state legislature passed a law requiring automatic admission to the students who rank in the top 10 percent of their high school graduating class.

“We’ve had a tradition of disparate treatment and unequal education among African Americans and Hispanics,” said U.S. Rep. Sheila Jackson Lee (D-Texas), who sits on the House Judiciary Committee. “To hear someone talk about reverse discrimination is a very sensitive question. I don’t want to applaud or affirm anyone being discriminated against. What I do want to think positively about is that the UT system has an obligation to educate all of its constituents, including the taxpaying Hispanics and African Americans who historically were precluded from going to that institution.”

Attacks on affirmative action are being used as a tool to reignite the conservative movement, Lee believes, because it’s an easy target. In addition, she noted, no one is challenging the “obviously disparate” treatment universities give to attract students with artistic or athletic talents.

According to U.S. Rep. Robert Scott (D-Va.), also a member of the House Judiciary Committee, the appeals court will likely adhere to the principle of stare decisis, in which courts respect and uphold a precedent unless there is compelling reason to change it. The plaintiffs’ real endgame is the U.S. Supreme Court, he said, and because the court’s makeup is different than it was when it ruled on Grutter, it’s not unreasonable of the plaintiffs to hope that it will reverse itself.

Scott argues that more consideration needs to be given to whether admissions measurements are fair in the first place, given all of the research findings, for example, that the SAT is a discriminatory measurement of ability. If a student relegated to a poor inner-city school takes the test and does okay and another student who attends an elite school only does a little bit better, why shouldn’t the inner-city student get preference when given a real opportunity that student might well outperform the more affluent one, Scott asks?

“With affirmative action you can fix that, otherwise we’ll have to get rid of all racially discriminatory measurements,” he said, such as the SAT example.

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