Last year, when the conservative Roberts Court considered the University of Texas’s (UT) affirmative action program, most Court observers expected the justices to strike this program down. In 2003, the Court had upheld a very similar program at the University of Michigan law school, but by a 5-4 vote. With ultra-conservative Justice Samuel Alito occupying the seat once held by moderate conservative Justice Sandra Day O’Connor, the Court appeared to have five votes to rethink that 2003 decision. And yet, the justices punted, sending the case back to a lower court to reconsider the case in a decision known as Fisher v. University of Texas.
Yet, while last year’s decision preserved UT’s race-conscious admissions program for the time being, it appeared to be little more than a stay of execution. The Court sent the case back down to the United States Court of Appeals for the Fifth Circuit, one of the most conservative federal appeals courts in the country. And it ordered the Fifth Circuit to apply a very skeptical eye to the University’s admissions standards. “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” the Supreme Court wrote, “[i]f ‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’ then the university may not consider race.”
Once again, however, UT has defied expectations. On Tuesday, a divided Fifth Circuit panel upheld the affirmative action program one more time.
Justice O’Connor’s 2003 opinion in the case, Grutter v. Bollinger, established that race is one of a myriad of factors a college or university can consider in order to ensure that the entire student body enjoys the benefits of a diverse campus. “Classroom discussion,” O’Connor wrote, “is livelier, more spirited, and simply more enlightening and interesting’ when the students have ‘the greatest possible variety of backgrounds.’”
Because the Supreme Court’s decision in Fisher requires a lower court to “be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” the Fifth Circuit’s opinion includes a long list of other steps the University has taken beyond considering race in order to foster diversity. The biggest example is Texas’s “Top Ten Percent Plan,” which automatically admits Texas students in the top ten percent of their high school classes (although the plan has since been amended to give colleges some flexibility to admit fewer students through this route). Because of the “sad truth” that Texas’s public schools remain largely segregated, the Top Ten Percent Plan is effective in admitting many minority students because the best performing students at a school that is almost entirely black or Latino will typically be black or Latino.
According to a majority of the judges on the Fifth Circuit panel, however, this is not enough to ensure the “benefits of diversity.” Though the Top Ten Percent Plan welcomes many students of color into the University of Texas, their segregated high schools produce a campus where most students share the experience of growing up in a racially homogeneous community. As the Fifth Circuit explains,
A variety of perspectives, that is differences in life experiences, is a distinct and valued element of diversity. Yet a significant number of students excelling in high-performing schools are passed over by the Top Ten Percent Plan although they could bring a perspective not captured by admissions along the sole dimension of class rank. For example, the experience of being a minority in a majority-white or majority-minority school and succeeding in that environment offers a rich pool of potential UT Austin students with demonstrated qualities of leadership and sense of self. Efforts to draw from this pool do not demean the potential of Top Ten admittees. Rather it complements their contribution to diversity—mitigating in an important way the effects of the single dimension process.
At its peak, the Top Ten Percent Plan was responsible for over eighty percent of the students admitted to UT’s flagship campus. The remainder were selected through a process known as “holistic review” which “looks past class rank to evaluate each applicant as an individual based on his or her achievements and experiences.” Under holistic review, race, a low-income background and similar factors can give an applicant a slight edge, although the benefit is very slight. As Justice Ruth Bader Ginsburg explained in her Fisher dissent, “the University’s admissions policy flexibly considers race only as a ‘factor of a factor of a factor of a factor’ in the calculus.”
Yet, without this factor of a factor, the Fifth Circuit’s opinion explains, the holistic review program would serve to make Texas’s campus significantly less diverse. In 2008, “holistic review contributed 19% of the class of Texas students as a whole—but only 12% of the Hispanic students and 16% of the black students, while contributing 24% of the white students.” “[I]f holistic review was not designed to evaluate each individual’s contributions to UT Austin’s diversity, including those that stem from race,” the Fifth Circuit concludes, “holistic admissions would approach an all-white enterprise.”
So the ultimate question presented by Fisher becomes whether a university can have two parallel admissions programs, one which tends to admit a relatively high number of minorities, and one that uses affirmative action to prevent it from filling UT’s remaining beds with almost entirely white bodies. Two Fifth Circuit judges, including Reagan appointee Patrick Higginbotham, say that the answer to this question is “yes,” but Judge Emilio Garza writes a dissent arguing that the answer should be “no.” Rejecting the majority’s assertion that minority students admitted through the holistic review process bring a different perspective than most of the students admitted through the Top Ten Percent program, Garza claims that “[t]he University has not shown that qualitative diversity is absent among the minority students admitted under the race-neutral Top Ten Percent Law.”
Despite the UT affirmative action plan’s history of cheating death, it remains likely that Garza’s views will ultimately prevail. The Fifth Circuit is very conservative, and the plaintiff in this case has the option to seek review of the panel’s opinion by the full court. Should the full court agree to review this case, it would be quite a gamble to bet on UT’s plan surviving another round. And even if the full Fifth Circuit does not hear this case, it could always be heard again by a Supreme Court that is skeptical of affirmative action.
Yet, beyond the legal issues present in this case, one fact cited in Judge Garza’s opinion stands out. “Even if we assume that all minority students who were admitted and enrolled in  through the race-conscious holistic review process gained admission because of their race, this number is strikingly small — only 216 African-American and Hispanic students in an entering class of 6,322.” That’s only a little bit more than 3 percent of the class.
Meanwhile, Texas has a population of over 26 million people, more than 3 million of whom are black and over 10 million of whom are Hispanic or Latino, according to census data. As the Fifth Circuit majority opinion indicates, that means that millions of African-American and Latino Texans are growing up in de facto segregated public schools more than 60 years after the Supreme Court’s landmark decision in Brown v. Board of Education. This overarching problem of segregated education in the state of Texas is barely dented by a college admissions program that gives a tiny fraction of these students the opportunity to attend the University of Texas.