Emilio Garza

The U.S. Supreme Court announced that it will hear a case involving the University’s use of race in undergraduate admissions decisions.

The case, Fisher v. Texas, was filed against UT when two white students were denied admission to the University in 2008. It claims that the University’s admissions policies, which take race into consideration, violated the plaintiff’s right to equal protection of the laws under the 14th Amendment. The Supreme Court will hear the case in its next term, which begins in October. It could potentially reverse the use of race as a factor in admissions at public higher education institutions.

UT won the lawsuit in an Austin federal district court and the Fifth Circuit Court of Appeals. The Fifth Circuit judges denied an appeal for rehearing of the case in a 9-7 vote.

The Supreme Court will look at Grutter v. Bollinger, a decision the Court made in 2003 which established that race can be used as a determinant in college admissions decisions.

Vice president of legal affairs Patricia Ohlendorf said the University will work with UT System attorneys, the Office of the Solicitor General and outside counsel. Ohlendorf said this group will ask the U.S. Supreme Court to affirm the Fifth Circuit Court’s decision and Grutter v. Bollinger.

Fifth Circuit Judge Emilio Garza’s ruled in favor of UT because of the precedent from Grutter v. Bollinger, but he does not believe race should be a factor in admissions decisions. In Garza’s written opinion, he said “the Supreme Court has chosen this erroneous path, and only the Court can rectify the error.”

A Texas law allows UT-Austin to only accept 75 percent of incoming freshmen under the top 10 percent rule, said Augustine Garza, deputy director of the Office of Admissions, when he spoke to The Daily Texan in September. The freshman class that entered in fall 2011 was the first class to be selected under this admissions policy.

“There are some excellent students out there who are not in the top 10 percent,” Garza said.

He said race is one of many factors considered in admissions for students who fall outside of the projected automatic admittance for their class.

Admissions takes academic achievement, personal achievement and special circumstances into consideration, according to the University’s website. Race and ethnicity is one of seven other factors that fall under the special circumstances portion.

President William Powers Jr. said the University’s admissions process is holistic and it follows previous statements by the U.S. Supreme Court on how an admissions process meets Constitutional requirements.

“We will continue to make those points as we proceed with this litigation so we can best serve the people of Texas,” Powers said.

Printed on Wednessday February 22, 2012 as: Supreme Court to reiew Fisher

 UT is filing a response today that asks the U.S. Supreme Court not to review a lawsuit challenging its consideration of race in the undergraduate admissions process, vice-president for legal affairs Patricia Ohlendorf said.

The lawsuit Fisher v. Texas was originally filed in 2008 on behalf of two white students denied admission to the University. UT’s filing with the court responds to the suit’s appeal to the Supreme Court, which only one of the students pursued. Ohlendorf said UT argues in the response that the University is in accordance with a 2003 Supreme Court case, Grutter v. Bollinger, which allows universities to use race in the admissions process to promote diversity.

“UT believes that its arguments are strong,” Ohlendorf said. “UT believes that its admissions policy is consistent with the U.S. Supreme Court opinion in Grutter v. Bollinger.”

Race and ethnicity is one of eight special circumstances that, along with personal and academic achievement, are factored into the freshman admissions process, according to the University’s website.

Fisher v. Texas was defeated by an Austin district court and the 5th Circuit Court of Appeals. In a 9-7 vote the 5th Circuit Court of Appeals refused to re-hear the case. These lower courts have ruled UT’s policy is in accordance with the Supreme Court decision in Grutter v. Bollinger.

In an opinion written for the 5th Court of Appeals by judge Emilio Garza, he concurred UT was within legal bounds set down by the Supreme Court but was critical of the University’s use of race as a contributing factor to admission in part because UT already had existing policies that effectively promoted diversity.

“The University was able to obtain approximately 96 percent of the African-American and Hispanic students enrolled in the entering in-state freshman class using race-neutral means,” Garza said.

The race-neutral policy Garza referred to is the state law passed in 1997 that mandates UT to admit all Texas public school students in the top 10 percent of their graduating high school class. Garza said the fate of UT’s admissions policy rests in the hands of the Supreme Court.

UT’s top 10 percent rule has changed since the suit was filed, but the Supreme Court will base it’s decision on the 2008 policy.

“The Supreme Court has chosen this erroneous path and only the court can rectify the error,” Garza said.

A Supreme Court ruling striking down the race-based policy is something Edward Blum, a UT alumnus and member of the Project on Fair Representation, said his group supports.

“We disapprove of virtually all considerations of race in public policies,” Blum said. “What makes the UT case unique is that UT already had a law in place, known as the top 10 percent law, that was doing a better job of promoting diversity than the race-based policy.”

Blum said the Project for Fair Representation, a nonprofit legal defense fund, is paying for Fisher’s lawyers, and he expects at least six outside agencies to file briefs in support of Fisher today.

For past hearings of the lawsuit, the National Association for the Advancement of Colored People Legal Defense Fund has filed briefs in support of the University on behalf of the UT chapter of the Black Student Alliance. Representatives of the organization did not indicate it had filed a brief with the Supreme Court.

Cortney Sanders, government freshman and political action chair for the BSA, said she did not wish to speak of her or the BSA’s opinions of the lawsuit, but she encouraged her classmates to research the case’s factual background.

“The fact is the plaintiff was in the top 12 percent of her class and did not qualify for automatic acceptance,” Sanders said.

She said Fisher could have gotten points in the holistic admissions process for non-top 10 percent students by participating in extracurricular activities, being an athlete or demonstrating musical ability.

“She chose not to do those things,” Sanders said. “It’s a point system. Students need to know that.”

UT’s admission policy also may be affected by new guidelines released last week by the Department of Justice and Department of Education that provide approved methods for increasing racial diversity. The guidelines focus on how universities should implement policies if they find race-neutral approaches to be ineffective to achieve the diversity the institution seeks.

Previous guidelines administered in 2008 under the Bush administration stated, “before using race, there must be serious good faith consideration of workable race-neutral alternatives.”

UT spokesman Gary Susswein said University officials are reviewing the guidelines but could not speak about the admissions policy due to the pending lawsuit.

The Supreme Court is expected to decide in mid-January if it will hear the case, Blum said.

Printed on Wednesday, December 7, 2011 as: UT asks court not to review affirmative action lawsuit

A federal appeals court handed down a win for UT in a lawsuit examining its consideration of race in admissions decisions, but the case could still have life if the plantiffs take it to the U.S. Supreme Court.

Two white students denied admission to UT in 2008 filed Fisher v. Texas, claiming the University’s admission policies violated their equal protection rights guaranteed by the 14th Amendment. Friday, the 5th Circuit Court of Appeals denied the plantiffs’ request for a rehearing by all 16 of the court’s eligible judges after a three-judge panel ruled in favor of UT in January. U.S. District Judge Sam Sparks originally ruled in favor of UT in 2009.

The University’s defense focused on the 2003 U.S. Supreme Court case Grutter v. Bollinger that upheld the University of Michigan Law School’s consideration of race during admissions as a tool to ensure a diverse student body. In January, Judge Emilio Garza voted against a rehearing and ruled in favor of UT. Garza agreed that the University met the standard set forth in the Grutter case but questioned the soundness of that case’s ruling.

The 5th Circuit judges voted 9-7 to deny a rehearing. Bert Rein, the plaintiff’s lead attorney, said the close vote could provide fodder for a successful case against UT before the U.S. Supreme Court. Garza’s ruling also provides support, Rein said.

“That would indicate that at least eight members of the court are concerned that a proper constitutional result wouldn’t support the Texas system whether under Grutter or otherwise,” Rein said.  

A request for a hearing by the U.S. Supreme Court is the only option remaining for the case. Rein said he and his clients are still considering whether to file the case with the Court.    

Patricia Ohlendorf, vice president for legal affairs, said she is confident in the University’s position if the plantiffs seek review from the U.S. Supreme Court because of the favorable rulings so far and a legal team including the current and former solicitors general of Texas.

The state’s Top 10 Percent rule means the majority of incoming freshmen enter through an application process that doesn’t take race into account. Because the rule made UT more diverse, the plantiffs questioned the need to consider race in admission decisions for students not admitted through the rule.

Since the beginning of the case, the rule has been adapted to cap the number of students admitted automatically.

“We will watch for the impact over the next few years as the modifications are implemented and will take that into account as we continue to review our admissions process,” Ohlendorf said.  

The National Association for the Advancement of Colored People Legal Defense and Educational Fund filed a brief on behalf of UT’s Black Student Alliance and in support of UT’s policy before each ruling on the case. Joshua Civin, an attorney for the fund, said the decisions have supported his organization’s stance that universities should provide visibly open paths to leadership.

“In our view, the nation’s future depends on students being exposed to diversity in their formative educational experiences,” Civin said.