The consensus from law professors to lay observers is that in Fisher v. University of Texas the U.S. Supreme Court punted—punted the case back for stricter scrutiny. But like a skillful kicker, Justice Anthony Kennedy put spin on the ball. Is it headed for the coffin corner?
On remand, U.T. will have to prove not only that its consideration of race meets Grutter v. Bollinger’s mandate to avoid quotas (which it surely does), but also that it is needed at all, given Texas’s “race-neutral” Top Ten Percent law. Passed in reaction to the 1996 Hopwood decision prohibiting any consideration of race, the law essentially requires U.T. to admit the top 10 percent graduating from each Texas high school. The law currently caps its reach at 75 percent of U.T.’s entering class, the remainder selected through a holistic review that considers race as a small factor in the context of each applicant’s unique life experience.
The Top Ten Percent law undisputedly produces more minority admissions at U.T. Beginning this fall, U.T.’s student body for the first time will be less than 50 percent white. But does the law truly produce the diversity virtues extolled in Grutter (confirmed as compelling in Fisher) and Regents of the University of California v. Bakke—and Sweatt v. Painter, which forced U.T. to integrate in 1950?
In Sweatt, the Supreme Court found the separate law school Texas cobbled together to accommodate African-Americans far from equal to U.T.’s, in part because it “excludes from its student body the racial groups which number 85% of the population of the State.” In a bench memorandum, U.T. alumnus Justice Tom Clark argued that his alma mater attracts a cross section of the state and thus “affords a wider exchange of ideas—and, in the combat of ideas, furnishes a greater variety of minds, backgrounds and opinions.”
Justice Ruth Bader Ginsburg dissented in Fisher that the Top Ten Percent law is hardly “race-neutral,” given its intent and effect. Indeed, the law contains a “poison pill” that lifts the 75 percent cap if a court order prohibits U.T. from considering race in reviewing remaining applicants. Moreover, the law’s “success” in admitting minority students to U.T. is the direct result of resegregation of Texas secondary schools.
As detailed in the “Brief of the Family of Heman Sweatt as Amicus Curiae” filed in Fisher, only 8.1 percent of students in the Houston Independent School District (ISD)are white, and at Jack Yates High, from which Sweatt graduated, only 0.5 percent were white and 91.7 percent are African-American. Only 4.6 percent of the Dallas ISD students are white, but at Highland Park High in the Dallas suburbs only 4.3 percent are African-American. And 1.9 percent of the San Antonio ISD enrollment is white, while Harlandale High is 98.7 percent Hispanic. Outside Texas’ largest cities, a quarter of the school districts are more than 77 percent white.
Admitting the top 10 percent from highly segregated schools ensures more minorities, but does it truly furnish “a greater variety of minds, backgrounds and opinions”? Today’s secondary-school segregation is not de jure, but de facto—the result of segregated residential patterns. The top students at Jack Yates High live in the same neighborhood in Houston’s Third Ward, likely had the same teachers growing up, and hang out together listening to the same music and discussing the same TV shows.
Only with a holistic review can colleges and universities take diversity beyond the one dimension of race and consider, for example, the contribution to classroom discussion that could come from the Canadian-born son of a Cuban father and Irish-Italian-American mother versus the typical graduate of Harlandale High.
Heman Sweatt was denied admission to U.T. because Texas law saw him in only one dimension—his race. President T.S. Painter found him fully qualified to study at U.T., “save and except for the fact that he is a negro.” He deserved more. He deserved consideration of his whole background and character, including his burning desire to study law to conquer Jim Crow. For now, U.T. provides applicants falling outside the Top Ten Percent law the holistic review that Heman Sweatt deserved, but was denied.
Texas’s Top Ten Percent law, like percentage plans in other states, takes minority admissions back to one dimension. And like Sherlock Holmes’s Seven-Percent Solution of cocaine and water, they produce an easy but empty “race-neutral” high.
Allan Van Fleet is a partner in the Houston office of McDermott Will & Emery. He is the principal author of the “Brief of the Family of Heman Sweatt as Amicus Curiae” filed in Fisher v. University of Texas at Austin.