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Marlen Whitley, a corporate lawyer in Houston who is black, says the effects of that decision were plain to see. Whitley was an undergraduate at the University of Texas at Austin when the 5th Circuit Court of Appeals handed down the Hopwood ruling. When he then entered the university’s law school, the third-year class, whose members were admitted before the Hopwood decision, included 25 to 30 African Americans, he said. In the class ahead of him, the first to enter after Hopwood, there were four black students, and in Whitley’s class there were eight.
“There were barely enough students of color to fill up one row of one of the lecture halls in the law school,” said Whitley, one of 14 former student body presidents to file a brief for the University of Texas.
In response to the shrinking minority student population, the state legislature enacted its top 10 percent law, which took effect in 1998. Because Texas high schools tend to be each dominated by one racial grouping, depending on their location, the law effectively ensured that top minority students from their schools would gain entrance.
In 2003 the Supreme Court handed down its Michigan decision, which allowed the University of Michigan Law School to continue to consider race as one of many qualities that make an applicant more desirable.
Then, two years later, based on the Supreme Court ruling in the Michigan case, Texas colleges started using race as a factor to admit students who weren’t chosen because they fell in the top 10 percent of their classes. For this group, the university considers race alongside a host of other factors such as extracurricular activities, family background and work experience.
For a graphic showing minority enrollment since 1996 at the University of Texas at Austin, the school at the center of the Fisher case, click http://link.reuters.com/qyv92t
In the current case, Fisher’s claim that the Texas program is unconstitutional rests o n the legal argument that, under the Equal Protection Clause, universities can use race only if there is no other way to improve diversity. Fisher argues that the top 10 percent law is sufficient for boosting racial diversity.
The University of Texas counters that the top 10 percent plan does not bring in enough minority students and that it needs to use race as a factor as it fills the rest of the class. It said the race-based process was responsible for 20 percent of all African American students and 15 percent of all Hispanic students admitted in 2008, the year Fisher was seeking admission.
Some opponents of racial preferences argue in a friend-of-the-court brief in the Texas case that the experience of California, where affirmative action is banned, shows that universities can maintain diversity with race-neutral methods.
California voters amended the state’s constitution in 1996 to bar state universities from considering race in admissions. In response, the University of California adopted a program similar to the first prong of the Texas program, offering places to the top 9 percent of graduates from each state high school.