A federal appeals court asked lawyers for the University of Texas on Wednesday to explain how they would decide when affirmative action for minority students is no longer necessary as it considered a lawsuit seeking to eliminate the school's current policy.
The 5th Circuit Court of Appeals is rehearing the case of Abigail Fisher, a white woman who in 2008 was not admitted to the University of Texas at Austin because she did not graduate in the top 10 percent of her high school class -- the criterion for 75 percent of the school's admissions. The school also passed her over for a position among the remaining 25 percent, which is reserved for special scholarships and people who meet a formula for personal achievement that includes race as a factor.
The 5th Circuit Court of Appeals originally ruled in favor of the university, but the U.S. Supreme Court ordered it to rehear the case because the appeals court didn't properly follow case law. The Supreme Court has said that a university may use affirmative action only when there is no other workable solution to bring about diversity, and only until minorities reach a critical mass on campus.
No one with Fisher's GPA was admitted in 2008, but Fisher's attorneys argued that enough minorities attend the university that race should no longer be a factor.
"There are alternative ways that do not use race to achieve similar results," Bert Rein, who represented Fisher said. "When you label everybody by race, that is what concerns the Supreme Court. It's an odious thing. We have an equal protection clause that says everyone should be considered on their own merits."
But the university, which has about 48,000 undergraduate students, said it has made progress in minority enrollment only because of race-based criteria and that minorities still are not yet sufficiently represented in all colleges. Attorney Gregory Garre told the court that the university has not yet reached what the Supreme Court in past decisions has called a "critical mass" of minority students.
The Supreme Court has ruled quotas unconstitutional and has defined critical mass as when minority students do not feel like tokens, the cultural climate on campus accepts minorities and college officials believe classrooms are sufficiently diverse to provide an educational benefit to all students.
The challenge to the Texas plan gained traction in part because the makeup of the Supreme Court has changed since the last time the justices ruled on affirmative action in higher education in 2003. Then, Justice Sandra Day O'Connor wrote the majority opinion that held that colleges and universities can use race in their quest for diverse student bodies.
O'Connor retired in 2006, and her replacement, Justice Samuel Alito, has shown himself to be more skeptical of considerations of race in education.
Judge Emilio Garza noted that in sending the case back, the Supreme Court ordered the appeals judges to apply a strict standard to determine that critical mass, a question that occupied much of Wednesday's discussion.
Garre said statistics showing how few minorities fill each classroom demonstrate the university has not reached that point, but offered no numbers for what a critical mass might look like.
Judge Patrick Higginbotham asked if the entire admissions policy -- the top 10 percent rule and the personal achievement index -- should be considered. He pointed out that the Texas Legislature made the top 10 percent rule to achieve racial diversity and that the state's school districts are largely segregated and vary dramatically in terms of student performance. He suggested this creates an admissions system that might favor underperforming minorities in poor schools while hurting high performing minorities in wealthy schools.
University President Bill Powers said the policy is the only way to ensure diversity at the school, which has a history of racial discrimination.
"Prior to the introduction of the admissions policy being defended today, the university saw the number of minority enrollments drop precipitously or stagnate, despite more targeted recruiting, increased scholarships, the use of socio-economic factors in holistic review, and the introduction of the top 10 percent law," Powers said after the hearing.
Fisher, though, said she was fighting to end discrimination based on ethnicity.
"I am going to fight for other people's rights," said Fisher, who has since graduated from Louisiana State University.
The court, normally based in New Orleans, chose to hold a rare hearing in Austin, where the university is based and Fisher lives. Appeals courts may choose to meet anywhere within their district.