October 2, 2012

The Fisher oral argument: Proportional representation

By Joshua P. Thompson Senior Attorney

As part of our continuining Fisher v. University of Texas oral argument coverage, I want to talk about a point pressed by the University in defense of its racial preference: proportional representation.   It has been well-reported that Texas had, through the Top Ten Percent Law, dramatically increased the raw number of under-represented minorities on the University of Texas’s campus in a race-neutral manner.  Nevertheless, on the day Grutter was decided, the University announced an admissions plan that would revert to sorting individuals on the basis of race.  The University defends its return to racial classifications by arguing that the Top Ten Percent Law didn’t achieve enough diversity.  That is, the University argues that since the state of Texas is 35% Hispanic, its incoming undergraduate class should also be 35% Hispanic.  Since race-neutral criteria did not (yet) achieve the “perfect” ethnic ratios at the University, the University argued it should be able to use race-conscious criteria to make up the difference and make the University more “proportional.”  There are two major problems with this argument: (1) it cannot be squared with the concept of “critical mass” at the forefront of Grutter; (2) it amounts to unconstitutional racial balancing.

In Grutter, the Court deferred to the Law School’s claim of a compelling interest in diversity.  Thus, the Law School’s position that it needed a “critical mass” of minority students to secure the benefits that flow from a diverse student body, became part of the Grutter Court’s holding.   According to the Law School, a “critical mass” is “a number that encourages underrepresented minority students to participate in the classroom and not feel isolated.”   The Law School argued that absent preferential treatment it could only enroll significantly less than 15% under-represented minorities.  With racial preferences, however,  it could achieve that 15% “critical mass” threshold.  There are, of course, a number of major problems with the Law School’s idea of critical mass, many pointed out by Justice Kennedy’s concurrence in Grutter.  The point here is that even if you accept the Law School’s “critical mass” concept, the University of Texas’s plan still fails constitutional muster.  The University already enrolled over 21% under-represented minotities under wholly race-neutral criteria.  The University had achieved more enrolled under-represented minorities in a race-neutral fashion than the Supreme Court has deemed necessary to achieve a “critical mass.”

Equally as damning to the University’s push to get a racially proportionate mix of students, is that it flies in the face of many Supreme Court cases decrying state attempts to racially balance individuals in accordance with population demographics. What other rationale could the University have for tying “critical mass” to the demographics of Texas?  Lest their be any doubt about its racial balancing prerogative, the University argues that it needs to institute racial preferences in admissions because Hispanic students are “under-represented,” and Asian students are “over-represented.”  Accordingly, the University punishes Asian students by making them score 200 points higher on their SATs than Hispanic students in order to be evaluated equally. The problem, however, is that Asian and Hispanic students are represented in about equal percentages — around 16% — at the University.  It is quite clear that the University’s interest is not in achieving a “critical mass,” but instead its interest is patently in achieving what it considers to be the “proper” racial mix of students at the University.  That is unconsitutional, and the Fisher Court should declare it so.

For more on the University’s attempt at racial balancing, chcek out the reply brief by Abigail Fisher, which eviscerates the University’s asserted interest in detail.

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