Blog Category: Affirmative Action
by: Amy Hummler
When does a university’s use of race in determining admissions to its undergraduate program violate the Equal Protection Clause? This is an issue that the Supreme Court must once again decide. On October 10, 2012, the Supreme Court heard the case of Abigail Fisher, who claimed her constitutional rights were violated when she was unfairly denied admission to University of Texas at Austin’s (“UT”) undergraduate program because she is white. The Fifth Circuit upheld the constitutionality of UT’s admission process in January of 2011 affirming UT’s use of race elements in determining undergraduate admissions as constitutional. (631 F. 3d 213 (5th Cir. 2011)). Pursuant to Grutter v. Bolinger, UT’s admission program not only guarantees students who are in the top 10% of their high school graduating class admission to the school, but also considers the race, and other various attributes, of each applicant. The Supreme Court held in Grutter that a university “will not violate the equal protection clause if it narrowly tailors its use of race in admission decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” (539 U.S. 306, 343 (2003)). Thus, the Fifth Circuit interpreted this as UT is allowed to consider the attributes of individual applicants of all races. 631 F. 3d at 221.
When UT guaranteed admissions to its undergraduate programs to the top ten percent of students, this increased the number of African Americans and Hispanics enrolled in UT. However, UT claimed that this increase in minority admissions still did not offer the diversity UT desired in order to meet its compelling interests of “promoting cross-racial understanding, breaking down stereotypes, and preparing students for an increasingly diverse workplace.” As a result in 2004, UT began to consider race among many other factors in determining admissions into its undergraduate program. Within a few years, UT was one of the top public universities in the country for producing undergraduate degrees for minority groups. Abigail Fisher, an in-state applicant, sought enrollment at UT Austin in Fall of 2008 and was denied.
This October, UT’s lawyer explained to the Supreme Court (who reaffirmed college affirmative action by a 5-4 majority in Grutter) that the university uses “holistic’ review of each applicant’s characteristics in addition to an applicant’s race. It was reported that Supreme Court Justices were ‘skeptical’.” After all, UT’s use of its “color-blind admittance” for applicants who were in the top ten percent of their class did increase diverse enrollment, which works in Texas where there are high schools that are nearly all African-American and Hispanic. UT argued that its top ten percent program admitted students at disadvantaged schools that have lower standardized test scores into the university, leaving out the average minority kids at better suburban high schools. Thus the use of its affirmative action program will admit more minority students from middle class and professional families. This apparently did not sit well with the Justices, including Justice Alito, who stated “I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds.” The balance of the court on affirmative action has shifted with Justice Alito replacing Justice O’Connor.
But despite this majority shift, the real issue is whether public universities are using Grutter to overstep their use of affirmative action. UT’s top 10% program not only increased enrollment of minorities, but also helped underprivileged kids that attend schools that are less competitive in standardized testing to gain admission into a public university. This program is something I believe should be adopted by all public universities. However, I agree with Justice Alito that that the use of affirmative action should be used to help underprivileged children in poorer communities to gain admissions to higher education. These underprivileged children, often minorities, do not have access to the better educational programs that the more privileged communities have. Thus, the use of race to admit minority students from the more privileged communities seems to be counter-intuitive.
The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.
*Amy Hummler is currently a staff member on the Widener Journal of Law, Economics and Race. To learn more about Amy Hummler, click here to visit her page: Amy Hummler
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