The AAUP joined a coalition amicus brief to the U.S. Court of Appeals for the Fifth Circuit in Fisher v. University of Texas. The plaintiffs claimed the University of Texas’s admissions system discriminated against them based on race, in violation of their equal protection rights under the Fourteenth Amendment. The brief argued that the university was entitled to promote a diverse student body through its admissions policy. The Fifth Circuit ultimately affirmed the constitutionality of the University’s admissions system.
The university’s admissions policy is based on a combination of the Top Ten Percent Law, where Texas students in the top ten percent to their high schools get automatic admission, and a holistic approach that considers each applicant’s race, among other factors. The University modeled its admissions policy on the admissions policy endorsed by the Supreme Court in 2003 in Grutter v. Bollinger.
In Grutter v. Bollinger, the Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School. The law school sought to obtain a “critical mass” of minority students in order to promote a diverse student body. The Supreme Court held that the Equal Protection Clause did not prohibit a university’s “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” Under Grutter, a university could seek to increase diversity only through a holistic, flexible, and individualized program, not via the use of quotas, separate admissions tracks, or a fixed set of points to minority applicants. Grutter embraced the idea that diversity in educational bodies is a legitimate government interest.
The brief sought reaffirmation of the principles established in Grutter and pointed out that the University of Texas specifically modeled its admissions policy on the policy endorsed by Grutter. The brief also argued that academic freedom depends on the right of universities to freely choose who is admitted to their communities; because universities have the educational expertise to design and fulfill their own academic missions, including promoting diversity and an open exchange of ideas, they are best suited to construct their admissions policies and should be given deference in that process.
The Fifth Circuit held that the University of Texas’s admissions policy was constitutional. Relying on Grutter, the Fifth Circuit’s opinion pointed out three objectives of promoting diversity in higher education: 1) increased perspectives inside and outside the classroom, 2) better preparation to act as professionals, and 3) increased civic engagement. The circuit court noted that after the court had struck down the University’s previous race-based admissions system (in the 1996 case of Hopwood v. Texas), minority applications and enrollment plunged. This prompted Texas to pass the Top Ten Percent Law, which caused applications from minority students to increase.
The Fifth Circuit affirmed that the University has “a compelling interest in obtaining the educational benefits of diversity.” As proposed by the amicus brief, the circuit court deferred to the University in its “educational judgment that such diversity is essential to its educational mission” because of “its experience and expertise, that a ‘critical mass’ of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.” When governmental entities such as schools select based in part on race, the policy must be “narrowly tailored” and is subject to “strict scrutiny” by the courts. The court further stated that while diversity is a legitimate goal, schools may not engage in racial balancing or design admissions policies to achieve a specific percent of minority students.
The court also acknowledged, however, that educational institutions are unique and that courts should consider the constitutionality of university admissions methods through an academic prism, deferring to universities’ decisions because: 1) these decisions are a product of “complex educational judgments in an area that lies primarily within the expertise of the university” and 2) universities occupy a special place in our constitutional tradition.”
Finally, while the circuit court did not rule on the issue directly, it did note that the effects of the Top Ten Percent Law may make it difficult to uphold the University’s admissions system in the future.