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In Grutter v. Bollinger and Gratz v. Bollinger, two cases from the University of Michigan, the U.S. Supreme Court emphatically reaffirmed the constitutionality of considering race and ethnicity in university admissions. But implementing these decisions is more complex than either side acknowledged. And it is most complex in Texas, which has large and diverse minority populations, seven years’ experience with race-neutral admissions and the most detailed admissions legislation in the country. Grutter found a compelling governmental interest in the pursuit of broad intellectual diversity in the classroom, including but not limited to racial and ethnic diversity. Grutter also found a compelling interest in ensuring that higher education, as the path to leadership in the next generation, be visibly open to applicants of all races and ethnicities. These interests justify consideration of race, subject to three basic requirements: serious and good-faith consideration of race-neutral alternatives, individualized and holistic review of applicants, and periodic review of the program. These requirements apply to a vast range of different situations. At the undergraduate level, most Texas schools have open admissions or nearly so. Race-neutral methods work fine for them. The controversy is confined to selective programs. By state law, undergraduate programs at state schools must guarantee admission to Texas high school graduates in the top 10 percent of their class. This law is color blind, mechanical and largely ineffective in isolation. But when backed with a vigorous recruiting program, it draws in many students who would otherwise not have applied, including many minority students. The unintended side effect is that top 10 percenters with guaranteed admission now fill three-quarters of the freshman class at UT-Austin, and that percentage is rising. Complaints about squeezing out strong students below the top 10 percent have been much exaggerated, but that squeeze is beginning to happen and can only get worse. UT-Austin can treat all applicants more fairly with fewer guaranteed admissions, more discretionary admissions and affirmative action in the discretionary zone. Grutter and Gratz would permit this; they do not require any school to use race-neutral methods that undermine other important educational goals. But fixing the 10 percent plan requires legislative action. No variation of the 10 percent law could workably be applied to graduate and professional programs. Professional schools principally have relied on aggressive recruiting, and to some extent on the pursuit of geographic diversity, with mixed results. Geography and the 10 percent plan produce diversity, to the extent they do, because of statistical correlations and the law of large numbers. Such methods are little help in graduate school admissions, because these are generally decentralized to individual departments and programs. The resulting admission pools are each too small to get much diversity benefit from the law of large numbers. It is hard to generalize about such disparate programs, but in general, graduate programs have shown the least recovery in minority admissions since Hopwood v. Texas ended affirmative action in the state. Experience in all these programs is now being reviewed under Grutter‘s mandate to consider race-neutral alternatives. Schools may be expected to keep the race-neutral methods that have helped, and where necessary to achieve reasonable diversity, to supplement those methods with limited consideration of race. If affirmative action is resumed, this review must be repeated periodically. LIST OF FACTORS The most immediate disagreement between supporters and opponents of affirmative action is what constitutes adequate ethnic diversity under Grutter. The opponents claim that a small number of minority students is sufficient — 10 percent has been suggested. Grutter does not define the concept, but it approved an affirmative action program at Michigan that produced minority enrollment ranging as high as 20 percent. The court said there is a limit somewhere short of minority representation in the population — but no selective school ever has come close to that limit. In Texas, where a majority of the college-age population is black or Hispanic, the need to be visibly open to applicants of all races suggests a need for minority enrollment at or above the high end of the range approved in Grutter. A school or program that resumes consideration of race must define diversity in broad terms, valuing many more factors than just race and ethnicity. Schools that consider race also must consider low income, hardships overcome, unusual talents or experiences, and any other fact about an applicant that might add a diverse perspective in the classroom. Any consideration of race must be embedded in an “individualized and holistic review” of each applicant; nothing about this process can be mechanical or reduced to a formula. Most graduate and professional admissions were individualized and holistic long before Grutter. Undergraduate admissions have been less individualized, because of the sheer number of files to be reviewed. But undergraduate admission officers rapidly are individualizing in the range where the hard decisions are made. With or without Grutter, Texas statutes encourage consideration of long lists of factors in admissions not subject to the 10 percent plan. Applicants are not able to rely just on grades and test scores; their essays, recommendations, activities and life experiences really matter. With or without affirmative action, the principal admission criteria will be academic, and other factors will be considered at the margin. Affirmative action has been a program to maximize the dual goals of diversity and academic excellence, by enabling selective programs to admit the very best students of each ethnicity. The most striking thing about the Grutter opinions was the conservative dissenters’ assault on academic excellence. Michigan could achieve diversity without considering race, they said, if it would just lower its admission standards across the board. Grutter does not just aid diversity; it protects selective admission standards from political attacks in the name of diversity. Douglas Laycock teaches constitutional law at the University of Texas at Austin. He helped represent the university in the Hopwood litigation, but he writes here in his personal capacity and does not speak for the university.

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