| The University has been down this road before. In 1996, in Hopwood v. Texas, 78 F.3d 932 (5th Cir.1996), the Fifth Circuit Court of Appeals struck down an admissions policy at the University of Texas School of Law. Four white applicants were rejected for admission to the law school in 1992 and brought suit in federal district court under the Equal Protection Clause of the Fourteenth Amendment, challenging an admissions policy at the law school which considered race as a factor in admitting students.
At that time, the law school ranked applicants for admission by LSAT score and undergraduate grade point average (GPA). They considered other factors, such as the difficulty of the undergraduate study undertaken by the applicant, as well as background and other qualifiers. Those factors were combined to create an index score. However, at that point, the scores of Mexican-American and African-American students were treated more favorably than those of students with the same scores, but who were not either Mexican-American or African-American. Additionally, applications of candidates were color coded by race. Further, Mexican-American and African-American candidates were evaluated and compared by committees of three whose designated task was to review the applications of Mexican-American and African-American candidates. Waiting lists for admission were also segregated.
The plaintiffs prevailed in the federal district court, but the court ruled that the law school could still continue to use race in the admissions process.
In ruling on the appeal, the Fifth Circuit went further:
"We agree with the plaintiffs that any consideration of race or ethnicity by the law school for the purpose of achieving a diverse student body is not a compelling interest under the Fourteenth Amendment.... the classification of persons on the basis of race for the purpose of diversity frustrates, rather than facilitates, the goals of equal protection...The use of race, in and of itself, to choose students simply achieves a student body that looks different. Such a criterion is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants." Hopwood, 78 F.3d at 944-45.
Appeals to the U.S. Supreme Court followed, but the Supremes didn't take the bait. Not then, at least.
In 2003, the U.S. Supreme Court did take up such a case - two, actually - at the University of Michigan. Those two cases were Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003), and concerned the admissions policies of the law school and the undergraduate program, respectively, at Michigan. In this pair of cases, the court stated clearly when and how race-conscious admissions policies are allowed.
Writing for the court in Grutter, in upholding the Michigan admissions policy, Justice Sandra Day O'Connor characterized the race-conscious admissions policy at Michigan's law school thus:
"The hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants' talents, experiences, and potential "to contribute to the learning of those around them."" Grutter, 539 U.S. at 315.
Indeed, the admissions policy at the law school evaluated a candidate's diversity by considering factors such as languages spoken, overcoming personal hardship or adversity or records of community service. It did consider race. However, the Court found that the Michigan policy merely used race as a "plus" factor in evaluating candidates for admission to the law school, with the plus factor carrying more or less weight for various applicants, depending on other plus factors of that candidate - such as quality of the undergraduate institution attended, quality of the application essay, and areas and difficulty of course selection - among other things. It did not apply a rigid point award for membership in a race or ethnic group, and it allowed for a flexible, individualized, and holistic consideration of applicants.
(Note, however, that the race-conscious admissions policy at the University of Michigan's undergraduate program, was struck down the same day as Grutter, for that very reason: it handed out a 20-point bonus to a minority applicant's admissions score by virtue of being part of a minority group. Gratz, 539 U.S. 244 (2003)).
Further, the Michigan admissions policy stressed that "no applicant should be admitted unless we expect that applicant to do well enough to graduate with no serious academic problems." Grutter, 539 U.S. at 315. The court, therefore, approved of Michigan's commitment to "one particular type of diversity," that is, "racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers"." Grutter, 539 U.S. at 315-16.
The court held that the Michigan policy was "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight," Grutter, 539 U.S. at 334, did "not unduly harm members of any racial group," Grutter, 539 U.S. at 341, and as such was narrowly tailored to achieve the compelling government interest of the educational benefits that flow from a diverse student body, thereby passing constitutional muster. Grutter, 539 U.S. at 343.
Which brings us to UT and the admissions policy that is headed to the Supreme Court. The policy under review in the current case is modeled on the prescriptions and analysis of the Grutter opinion.
According to the Fifth Circuit opinion in this case, that policy states that Texas residents who are in the top ten percent of their graduating high school classes are guaranteed admission to the University. All other in-state applicants are granted or denied admission based on their Academic and Personal Achievement Indices. The Academic Index score is derived from standardized test scores and high school class rank. The Personal Achievement index score is gleaned from application essays and a review of the candidate's complete file. That review will consider leadership qualities, extracurricular activities, and special circumstances such as socioeconomic status. It is in this Personal Achievement Index score where race or ethnicity is given consideration, though not accorded special weight in the same manner as other policies at other schools which were later struck down.
Like the Michigan policy that was upheld by the Supreme Court, this policy considers race, but does not give it an automatic point distribution. It does not employ quotas or set-asides, which have long been forbidden. Unlike the policy at issue in the Hopwood case, all candidates are subject to the same metrics, and there are no separate committees to evaluate minority candidates. It considers race as a "plus" factor or "soft" variable only, and does so as part of a holistic, individualized approach. Potentially, race can be given the same weight as an attribute such as school leadership, or an ability to play a musical instrument. In denying relief to the plaintiffs, the Fifth Circuit even wrote:
""It would be difficult for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court in Grutter," and "as long as Grutter remains good law, UT's current admissions program remains constitutional."" Fisher, 631 F.3d at 218.
It would seem to be a slam dunk for UT to uphold its policy that considers race as one of several, equally-weighted factors.
Maybe not.
Since Grutter was handed down, however, Justice O'Connor has retired. Justice Stevens has retired. Justice Kennedy is generally the swing vote to which either side will appeal, but prognosticators do not think he will be much help to an affirmative-action oriented university admissions process. Justice Kagan would likely vote with the liberal faction of the Court, but she is likely to recuse herself from hearing or considering the case because of her former role as solicitor general in the current administration. One thing is certain, however - the issue will come up at election time in November.
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