Race in Admissions at the U. of Texas: How We Got Here, and What’s Next

Chronicle of Higher Education, July 15, 2014

A divided federal appeals court on Tuesday handed a win to supporters of affirmative action when it upheld the University of Texas at Austin’s race-conscious admissions policy, but the decision will not end the wrangling over colleges’ consideration of race in admissions. The Texas dispute has a long legal history. What follows is a guide to key moments in the case, and a look at what may come next.

2008: An Applicant Challenges Texas’ Policy

Abigail N. Fisher was denied admission to the Austin flagship, and she accused the university of improperly rejecting her because of admissions policies that she said unfairly favored members of minority groups.

2009: Round 1 Goes to Texas

A federal judge in Austin rejected Ms. Fisher’s lawsuit, finding that the university’s policies were narrowly tailored and therefore constitutional. The judge cited the U.S. Supreme Court’s landmark 2003 ruling in Grutter v. Bollinger, which upheld affirmative-action policies at the University of Michigan’s law school.

January 2011: Austin Prevails Again

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld the university’s policy, though the judges who ruled relied on sharply differing opinions.


2012: Supreme Court Intervenes

The university had urged the high court not to take up Ms. Fisher’s challenge to its admissions policies, but the justices chose to hear the case anyway, setting the stage for its first consideration of the issue in almost a decade.

2013: Court Says Colleges Must Justify Affirmative Action

In a 7-to-1 ruling, the Supreme Court vacated the decision by the appeals court and turned up the pressure on colleges to prove that they had adequately considered race-neutral admissions policies. The justices sent the case back to the Fifth Circuit, telling the lower court to subject the policy to stricter legal scrutiny.

2014: Another Win for Texas

The appeals court once again upheld Austin’s policy, in a 2-to-1 ruling on Tuesday. {snip}

Looking Ahead: What’s Next?

Edward J. Blum, director of the Project on Fair Representation, which has supported Ms. Fisher’s suit, called the panel’s ruling “disappointing” but said the outcome was “not unexpected.” He vowed to appeal. As before, judges of the Fifth Circuit could decide to rehear the case, though they do not have to do so, and the case could also once again go before the Supreme Court.

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  • MekongDelta69

    I’m not a lawyer, I don’t play one on TV, and I don’t smell like one.

    So this means more Whites will be admitted now?


    • JohnEngelman

      The problem with affirmative action is not that it discriminates against whites. The problem is that it discriminates against whites and Orientals who can perform adequately.

      • Tertius

        well said

      • propagandaoftruth

        It discriminates against any who achieve too well apparently, including Ms. Fisher…

      • Einsatzgrenadier

        Yeah right. Even the Chinese support and benefit from affirmative action for minorities: http://www(dot)caasf(dot)org/

        • JohnEngelman

          The Chinese do not need affirmative action policies. They perform fine without it.

          This article was posted on American Renaissance on December 5, 2011


          Asian students have higher average SAT scores than any other group, including whites. A study by Princeton sociologist Thomas Espenshade examined applicants to top colleges from 1997, when the maximum SAT score was 1600 (today it’s 2400). Espenshade found that Asian-Americans needed a 1550 SAT to have an equal chance of getting into an elite college as white students with a 1410 or black students with an 1100.

          Top schools that don’t ask about race in admissions process have very high percentages of Asian students. The California Institute of Technology, a private school that chooses not to consider race, is about one-third Asian. (Thirteen percent of California residents have Asian heritage.) The University of California-Berkeley, which is forbidden by state law to consider race in admissions, is more than 40 percent Asian–up from about 20 percent before the law was passed.

          • Einsatzgrenadier

            That’s not what the Asian American Legal Defense and Education Fund (AALDEF) says:

            Asian Americans might not be hurt by diversity considerations, but are they helped by them?

            Here are a few of the ways in which Asian Americans are helped by diversity considerations in admissions:

            Asian Americans as a group continue to be underrepresented in certain academic programs. For example, after Proposition 209 banned race-conscious admissions in California, Asian enrollment at UC Berkeley fell in some graduate programs. And across all UC law schools, White enrollment rose dramatically (59.8% to 71.7%) immediately after 209, while Asian enrollment fluctuated by less than 1%.

            When admissions and enrollment data on Asian students is broken down by ethnicity, it’s clear that particular Asian ethnic subgroups face unique social and economic disadvantages and remain underrepresented across the board at selective colleges and graduate programs. Well-meaning people have depicted Black and Latinos as the typical beneficiaries of diversity considerations and Asian Americans as “model minorities.” But in reality, some Asian ethnic subgroups’ education levels are just about the same as Blacks and Latinos. For example, Blacks and Latinos above the age of 25 hold bachelor’s degrees at 18% and 13% respectively, compared to 14% for Cambodian and Hmong communities and just 12% for Laotians. When Asian Americans are not all lumped together within one catch-all category, the “model minority” myth falls apart.


            Wouldn’t Asian Americans get fair treatment at competitive schools if they banned diversity considerations?

            Not quite. Serious doubts remain about whether California’s ban on race-conscious admissions policies (Proposition 209) had a positive impact on Asian applicants’ chances. In fact, in the nine years before Proposition 209 ended race-conscious admissions policies in California, Asian student enrollment at University of California (UC) schools rose twice as fast it did in the 14 years after race-conscious policies were banned.

            In any event, there is evidence that banning diversity considerations further disadvantaged some Asian students. That’s because the 24 distinct ethnic groupsthat make up the Asian American community have a range of academic achievement and challenges. In California, for example, 40% of Cambodians and Laotians haven’t finished high school — twice the statewide rate. After Proposition 209, these Asian American subgroups, among others, remained drastically underrepresented in freshman classes at UC schools. Diversity considerations, like those used by UT-Austin, can be critical in ensuring that the range of Asian American applicants’ experiences are given the individual consideration they deserve.


            Is it true that Asian Americans need higher SAT scores than others to be accepted to selective universities?

            No. One study claimed that 15 years ago, Asian applicants had to score 140 points higher on the SAT (on a 1600 scale) than Whites to have the same rate of admission. Of course, if such a thing were true, that might be evidence of discrimination against students of color, or negative action–the exact opposite of race-conscious admissions policies. Negative action is illegal — Asian applicants should never have a harder time getting accepted to college than White applicants.

            But before we jump to conclusions, remember that SAT scores are not the only or best indicator of an applicant’s merit. Some researchers have pointed out that grades are just as (if not more) important than SATs for college, and that Asians with the same SAT scores on average have slightly lower GPAs than Whites. Others contend that SAT test scores of Asian applicants are sometimes inflated because some schools include international Asian students along with domestic Asian American students, and statistically international Asian students have higher SAT scores. (For example, at New York University’s Stern School of Business, nearly 50% of applicants are international Asian students). Still others have pointed out that Asian students apply disproportionately more to majors and departments that heavily value quantitative measures of merit like test scores (e.g., business), rather than those that emphasize an applicant’s body of work (e.g., graphic design).

            That’s why a gap in SAT scores between racial groups does not, standing alone, prove negative action. But if all relevant factors were considered alongside SAT scores, and it turned out that colleges were in fact discriminating against Asians or other racial minorities, then AALDEF would certainly look into taking action.

          • JohnEngelman

            I do not care what the Asian American Legal Defense and Education Fund has to say about affirmative action. Orientals do not need it. They are foolish to support it. So are Jews.

  • I am not optimistic about our chances in this particular case.

    Why not? Easy, I put myself in the position of a Supreme Court Justice (if only), and read the arguments.

    Remember, the pregnant question isn’t whether the Texas policy is right or wrong or goofy or sane. It’s whether it is unconstitutional according to the Federal constitution.

    Sorry to say, but I don’t see any Federal Constitutional grounds to knock it out.

    “But you know it was designed to help NAMs and hurt whites.”

    If there’s smoking gun proof of that, then yeah, at that time I can call up the 14th and the EPC. But if there isn’t, I cannot and will not validate the “disparate impact” doctrine by saying that its effects alone prove or are indicative of anything. The last thing I want to do is to etch the disparate impact doctrine in stone, because it’s only a very short trek from there to race-norming prosecutions of violent crime, as violent crimes being crimes at all has a disparate impact on black man.

  • dd121

    How’s this working out for you libs? You have your AA but I for one won’t let a black doctor near me or get on a plane if a black is the pilot. Life’s too short to risk it on incompetent blacks.

    • watling

      Strange you should say that because in films it’s the black guys who tend to be the good guys, and often the heroes who assist or save whitey.

      Hollywood wouldn’t lie, would it?

      • dd121

        Yes, that’s the not so subtle propaganda. White males are often portrayed as idiots or buffoons.

    • TrayvonCohen

      How do you know if the pilot is black or not?

      • dd121

        Pilots usually stand in the cockpit door and smile and wave as you board. Also, often they board just a few minutes before the passengers. They’re the ones in the uniform.

        • TrayvonCohen

          I understand that. What I really mean is you don’t know who will be the pilot of your flight when you buy the air ticket, and if you change your fight just before boarding, that costs a lot.

          • dd121

            Where I go they have flights leaving every hour or two. To get off the plane and re-book a flight a hour later doesn’t cost anything. I’ve done it before and I don’t mind because I’m not in the big rush everybody else seems to be.

  • emiledurk16

    “Disparate Impact”: A theory that prohibits an employer (university) from using a NEUTRAL hiring (admissions) practice that has an UNJUSTIFIED adverse impact on members of a protected class.
    Lets put aside the phrase “members of a protected class” for the time being.

    How, in God’s name, can a NEUTRAL hiring practice, if it’s truly neutral, result in anything but a JUSTIFIED result?