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Supreme Court sends affirmative action case back to lower courts

George Curry | 6/27/2013, 12:11 p.m.

Both the district and federal appeals courts had dismissed Fisher’s claim before the Supreme Court agreed to take the case.

Until 1996, UT had taken a student’s race into account in admissions. However, in Hopwood v. Texas, the same federal appeals court that will now rehear Fisher, ruled the practice unconstitutional, a ruling that would be later superseded by the Supreme Court’s Grutter ruling permitting the use of race when narrowly tailored.

After the Hopwood decision, the university added a Personal Achievement Index to go along with its Academic Index. The PAI was part of a holistic review of applicants, looking at such factors as leadership, extracurricular activities, work experience, socio-economic status, whether there was only one parent in the home, language spoken in the home, and race.

The PAI was “partially designed to increase minority enrollment,” the university said. However, it said, “Race, by itself, is not given any numerical value.”

Approximately 75 percent of the University of Texas’ admissions are filled through the Top 10 Percent Plan. In its court filings, the university revealed that in 2008, when Fisher sought admission, 81 percent of all freshmen and 92 percent of all Texas residents admitted as freshmen, were Top 10 Percent applicants, leaving only 841 slots to be filled by non-Top 10 Percent students.

Moreover, in its Supreme Court brief, the University of Texas said Fisher would not have been accepted into the university even if it had never considered the race of any applicant.

On page 14 of its “Brief of Opposition,” the university said: “The undisputed evidence demonstrated that Fisher would not have been offered fall admission in 2008 even if she had scored a perfect ‘6’ on her PAI – the portion of the admissions process where race is considered as ‘a factor of a factor of a factor.’ Although Fisher theoretically could have been admitted through the summer admissions process, the reality is that her academic credentials could not overcome the particularly stiff competition among in-state applicants who graduated outside the top 10 percent of their high school class.”

After subtracting the admission places for those automatically accepted under the Top 10 Percent Plan, UT said, Fisher was one of approximately 16,000 competing for 1,216 fall admission slots available for students who did not finish in the top 10 percent of their class.

“The acceptance rate for those applicants was only 7.6 percent – lower than Harvard’s undergraduate acceptance rate for fall 2008,” UT stated.

The percentage plans adopted by Texas, Washington and Florida have proven

to be a poor substitute for affirmative action, according to a study by the U.S. Commission on Civil Rights.

In a 2002 report titled, “Beyond Percentage Plans: The Challenge of Equal Opportunity in Higher Education,” the commission observed: “Can percentage plans achieve the goal of equal education opportunity? Based on the analysis performed here, the answer unfortunately is no.”

After affirmative action was outlawed in California, Texas and Florida, the U.S. Commission on Civil Rights studied percentage plans in the three states that guaranteed a certain percentage of students college admission.

The report concluded, “Percentage plans alone do not improve diversity by reaching underrepresented minority groups and will only have their desired effect if affirmative action and other supplemental recruitment, admissions and academic support programs remain in place.”