A lawsuit over the role of race in U. Texas’ admissions process has brought renewed attention to the social friction generated from affirmative-action policies intended to level the playing field.
Fisher v. Texas, a case in which two applicants to UT-Austin sued the school after the University denied them admission, promises to be a noteworthy peg in the long history of affirmative action in employment and college admissions. The plaintiffs claim the University’s use of race as a component of the application review violates their 14th Amendment rights.
Fisher v. Texas is following a legal path similar to the track that generated the 1996 landmark ruling by the Fifth Circuit Court of Appeals in Hopwood v. Texas, which said that a person’s race could not be considered in the admissions process. The appellate court’s ruling in Hopwood was overturned by the Supreme Court in Grutter v. Bollinger, in which the Supreme Court ruled the University of Michigan Law School could consider race as one of many factors its admissions policy.
“I would like to see [the Fifth Court of Appeals’] statements for taking up [Fisher v. Texas],” Coleman said. “This case is nowhere near the same [as Hopwood v. Texas]. [The top 10 percent rule] was the remedy to Hopwood. It was [Texas Attorney General] Dan Morales who made law through his opinion that was broader than the ruling on Hopwood.”
An executive order issued by President John F. Kennedy in 1961 marked the first time that the term “affirmative action” was used with regard to race relations. The Civil Rights Act of 1964 had passed without creating racial quotas for employers, and Title VII of the act prohibited employers from discriminating — in the sense of making determinations — on the basis of race, religion, sex or ethnicity. But in the early 1970s, President Richard Nixon signed an executive order that implemented goals and timetables for increasing employment for women and minorities.
The Supreme Court ruled in 1978 that universities could not establish quotas or ratios to promote diversity, but that race could be used as a factor in the admissions process.
At UT from 1983 to 1995, the rate of blacks and Mexican-Americans enrolled at the UT School of Law averaged at 6.3 percent and 11.5 percent, respectively. In 1992, Cheryl Hopwood, an applicant to UT’s School of Law, and other plaintiffs sued after the University denied them acceptance, claiming they would have been admitted to the University had it not been for the admission policies they claimed placed undue emphasis on race in the admissions process. The Fifth Circuit Court of Appeals ruled in favor of Hopwood and banned the use of race considerations in determining admission into UT’s law school.
The Supreme Court declined to review the case. Coleman said Morales’ opinion mandated that all universities and colleges in Texas follow the Hopwood decision.
After a dramatic University-wide drop in black and Mexican-American enrollment rates to 4.1 percent and 14.7 percent, the Texas Legislature passed the top 10 percent rule, or Texas House Bill 588, in 1997.
Patricia Ohlendorf, UT’s vice president for legal affairs, said legislators supporting the top 10 percent rule when it was passed thought it was an effort to boost racial diversity, even though the law said nothing explicitly about race. From 1998 to 2008, black and Mexican-American enrollment rates increased from 3 percent to 6 percent and from 13 percent to 20 percent, respectively.
The Hopwood decision was overturned in 2003 when the Supreme Court ruled in Grutter v. Bollinger that the diversity of student bodies is a compelling state interest and that race considerations may be taken into account in the admissions process.
Last year, Federal District Judge Sam Sparks ruled against Abigail Fisher and Rachel Michalewicz, the two plaintiffs in Fisher v. Texas. The U.S. Education Department filed an amicus brief in support of the University.