“This case presents the Court with an opportunity to clarify the boundaries of race preferences in higher education or even reconsider whether race should be permitted at all under the Constitution’s guarantee of equal protection,” said Edward Blum, the group’s director.
The project also issued a statement in Fisher’s name. “I hope the court will decide that all future UT applicants will be allowed to compete for admission without their race or ethnicity being a factor,” she said.
Most entering freshmen at Texas are admitted because they are among the top 10 percent in their high school classes. Fisher’s grades did not put her in that category.
The Texas Legislature adopted the Top Ten Percent law after a federal appeals court ruling essentially barred the use of race in admissions.
But following the high court ruling in 2003, the university resumed considering race starting with its 2005 entering class. The policy at issue applies to the remaining spots beyond those filled by the top 10 percent and allows for the consideration of race along with other factors.
Texas said its updated policy does not use quotas, which the high court has previously rejected. Instead, it said it takes a Supreme Court-endorsed broader approach to enrollment, with an eye toward increasing the diversity of the student body.
“We must have the flexibility to consider each applicant’s unique experiences and background so we can provide the best environment in which to educate and train the students who will be our nation’s future leaders,” said Bill Powers, president of the University of Texas at Austin.
Before adding race back into the mix, Texas’ student body was 21 percent African-American and Hispanic, according to court papers.
By 2007, the year before Fisher filed her lawsuit, African-Americans and Hispanics accounted for more than a quarter of the entering freshman class.
Fisher’s challenge says the Top Ten Percent law was working to increase diversity and that minority enrollment was higher than it had been under the earlier race-conscious system.
Fitzpatrick said two other states, California and Florida, use similar “top 10” plans, although California law explicitly prohibits the consideration of race.
“But the vast majority of schools that are selective are using affirmative action, though they don’t like to advertise it for fear of being sued,” he said.
The case is Fisher v. University of Texas at Austin, 11-345.
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