By The Editors

A federal district judge Monday upheld the University of Texas at Austin’s use of race in its undergraduate admissions process, declaring that university officials had followed the diversity guidelines set by the U.S. Supreme Court in 2003.

“The undisputed evidence establishes that UT has done more than merely consider race neutral alternatives,” Federal Judge Sam Sparks wrote in a forty-three page decision. He declared the state’s flagship university “has used and continues to use race-neutral alternatives in addition to its limited consideration of race as part of its admissions process.”

That practice, the Judge said, adheres faithfully to the guidelines the Supreme Court had set six years ago in approving the admissions procedures at the University of Michigan Law School in the Grutter v. Bollinger case.

Photo by Marsha Miller

Borrowing a statement used by Texas’ Solicitor General, whose office defended the University’s position, Judge Sparks began his concluding words by stating, “ ‘If the Plaintiffs are right, Grutter is wrong.’”

But, he added, the plaintiffs in this case, Fisher v. Texas, were not right, and “Consequently, as long as Grutter remains good law, UT’s current admissions program remains constitutional.”

The NAACP Legal Defense and Educational Fund and the private law firm of Fulbright & Jaworski LLP filed a friend-of-the-court brief supporting the University’s admissions process on behalf of the Black Student Alliance at UT and several students acting individually. The Texas League of United American Citizens also filed a friend-of-the-court brief in the case.

John Payton, LDF President and Director-Counsel, said after the decision was released that “LDF has fought tirelessly to ensure that the pathways to success and leadership are open and accessible to all students. Today’s decision will allow [the University] to continue its essential and well-documented efforts to provide a truly diverse educational environment for its students.”

Payton argued the Grutter case before the Supreme Court on behalf of the University of Michigan.

The current case, Fisher v. Texas, is the first court challenge to the consideration of race in university admissions after the Grutter ruling.   Judge Sparks’ decision is likely to be appealed to the Fifth Circuit Court of Appeals, whose jurisdiction includes Texas.

Texas has been a major battleground in recent decades between those who favor and those who oppose efforts to promote diversity in higher education. In the 1996 Hopwood v. Texas case, the Fifth Circuit struck down as unconstitutional the race-based criteria University officials had used in admissions decision-making, and black and Hispanic enrollments immediately declined sharply.

But since then they have rebounded, thanks in part to the University’s “race-neutral” efforts to increase black and Hispanic enrollments, and to a state law under which Texas high school students  who stand in the top ten percent of their class at the time they submit their application gain automatic admittance to the University of Texas.  In recent years more than 70 percent of both black and Hispanic students admitted to UT have stood in the top ten percent of their high school Classes.

Nonetheless, because it is the state’s flagship institution and one of the most prominent universities in the nation, UT at Austin has remained a lightning rod for those who seek to destroy University efforts to provide greater access and opportunity to African-American and Latino students.

Last year two white graduates of Texas public high schools sued the University, charging that its consideration of race in judging applicants for admission was unconstitutional.

University officials countered that they considered race as just one factor in a complex, multi-layered admissions process that also involves many factors  — such as an applicant’s high school class rank, and performance on two essays required for admissions — which are race-neutral.

Judge Sparks agreed, stating at one point in the ruling that “UT considers race in its admissions process as a factor of a factor of a factor of a factor. … race is one of seven ‘special circumstances,’ which is in turn one of six factors that make up an applicant’s personal achievement score.”

While blacks comprised 12 percent of Texas’s black population last year, 6 percent of UT’s 2008 entering Class was black; Hispanics make up 36 percent of the state’s population, but were 20 percent last year’s entering Class at UT. On the other hand, whites, about 48 percent of the state, made up 52 percent of the 2008 Class, and Asian- Americans, 3.4 percent of the state, were 19 percent of the Class.

Judge Sparks noted in his decision that UT’s rationale for its admissions procedures was based on more than just the overall admissions statistics. They also took into account the state’s and the nation’s need to tap the talent within Texas’ diverse population groups and to produce graduates who are fully cognizant of the importance of equal opportunity to the future of Texas and the nation.

He noted that UT still had not by its own reckoning achieved a “critical mass” of black and Hispanic students on the campus which would break down the “racial isolation” that continues to characterize much of the classroom experience of all UT students. For example, he cited a University 2002 study which found that that year 79 percent, or 4,448, of the University’s 5,631 classes  had zero or one African-American students and 30 percent, or 1,689 had zero or one Hispanic students.

While echoing University officials that what constitutes a “critical mass” in these terms cannot be defined as a number, Judge Sparks wrote “… the large-scale absence of African-American and Hispanic students from thousands of classes indicates  UT has not reached  sufficient critical mass for its students to benefit from diversity and illustrates UT’s need to consider race as a factor in its admissions in order to achieve those benefits” – benefits, he added, which occur largely in the give-and-take of classroom discussion.