Affirmation: The Future of Admissions
Published: Friday, November 30, 2012
Updated: Friday, November 30, 2012 03:11
Fisher v. The University of Texas has revived one of the most polemical debates in America: whether race can be used as a factor in admissions to institutes of higher education. This issue undoubtedly resonates at Rice University, which, like most American universities, factors an applicant’s ethnicity when selecting its freshman class. While the arguments concerning affirmative action are widely known, a true understanding of the issue requires both legal and historical background.
In 2007, one year before current seniors applied to Rice, Abigail Noel Fisher of Austin, Texas, sent off her college applications. A soccer player and cellist with above-average grades, she hoped to secure admission into the freshman class of the University of Texas at Austin. Her father and sister had made it to UT, but Abigail did not. Instead, she made history. Fisher felt cheated by UT’s use of race in admissions when she was not accepted and sued the university in Fisher v. The University of Texas. The case was heard in October of this year by the Supreme Court, and will be decided sometime next year, most likely around June.
Fisher’s case rests on the unique nature of UT’s admissions program. As all of Rice’s Texas students know, admissions to UT are governed by the Texas House Bill 588, known as the “top 10 percent rule,” which stipulates that the top 10 percent of each high school class gains admission to UT. This determines around 75 to 80 percent of the university’s admission slots, resulting in an uphill battle for students who, like Fisher, came from strong public schools and failed to rank in the top 10 percent.
The top 10 percent rule cannot be understood without a brief history of affirmative action law. The first Supreme Court case regarding affirmative action in college admissions was Regents of the University of California v. Bakke in 1978. Allan Bakke, a white man applying to the University of California at Davis School of Medicine, felt cheated when he received rejection letters two years in a row. Bakke felt that UC Davis’ admissions policy, which reserved a certain number of spots for minorities, euphemistically referred to as “special applicants,” violated his constitutional rights.
The Bakke case sharply divided the Supreme Court. Four justices from the liberal wing judged the program and the use of race in admissions was legal. Four justices from the conservative wing ruled the opposite and declared the program a violation of the 14th Amendment. Justice Lewis Powell, the only justice of the nine not in one of these camps, wrote what the Supreme Court refers to as a plurality opinion, meaning that different justices joined him on different parts of his decision. Powell joined with the conservative wing in finding UC Davis’ policies in violation of the 14th amendment but joined with the liberal wing in finding that the state had a compelling reason to allow affirmative action as long as it was a “plus factor” but not a determining one. However, Powell felt affirmative action could only be for the purpose of diversity. The Bakke case is a landmark decision and one that all too often gets lost in the debate over affirmative action. While proponents have argued for other reasons to support affirmative action, such as righting historical wrongs or providing an “equal playing field,” these justifications have been unconstitutional in higher education since 1978.
In 1996, UT lost an affirmative action case, Howard v. University of Texas, in the 5th U.S. Circuit Court of Appeals, one of the federal appeals courts that serves as the intermediary between federal district courts and the Supreme Court. UT quickly changed its policies to disallow racial consideration in the admissions process, which meant the Supreme Court could not hear the case, as there was no longer an issue. After Hopwood v. Texas, none of the states in the 5th Circuit’s jurisdiction — Louisiana, Texas and Mississippi — could use race as a factor in admissions decisions. This included Rice University, which stopped its use of race in admissions.
The decrease in African-Americans and Hispanics at UT did not sit well with the Texas Statehouse. In 1997, the Texas Legislature, including Governor George Bush, passed the race-neutral “top 10 percent rule” to increase diversity at UT. The Legislature believed that because many public high schools in Texas have significant racial differences, the plan would increase diversity.
The new rule did not end the debate, and in 2003, the Supreme Court heard a pair of cases involving the University of Michigan. The first case, Gratz v. Bollinger, focused on Michigan’s undergraduate program. Michigan utilized a numerical scale to rate applicants giving points based on extracurricular activities and grades. It also assigned points to underrepresented minorities. In a bare majority of conservative justices, the court struck down this system and the use of any quantitative methods of considering race in admissions. While Gratz helped clarify what the court felt failed strict scrutiny, the second case, Grutter v. Bollinger, demonstrated what admissions programs the court considered constitutional. Whereas Gratz sued Michigan’s undergraduate program, Grutter filed against its law school. Unlike the undergraduate system, the law school did not use any quantitative measures for race. Instead, they simply used race when evaluating each candidate in order to achieve a “critical mass” of minority students. Unlike mass in the physical sciences, this had no quantitative value; instead, it was defined as simply “enough” minority students. Justice Sandra Day O’Connor wrote for the court, joined by its liberal wing. Thus, the pair of Gratz and Grutter mirrors the decision in Bakke. One justice agreed with the conservatives in striking down a particular plan, but upheld some affirmative action with the liberals.