The Court's decision in Fisher v. University of Texas defied the expectations of many commentators and pundits who had broadly predicted in the weeks before the decision that the Court would abandon the standards established in Grutter. It did not. If anything, the Court reinforced that precedent by returning the case brought by Abigail Fisher against UT to the Court of Appeals in Texas to determine if the university can meet the exacting standards of proof established in Grutter 10 years ago.
On remand, UT must demonstrate that its consideration of race and/or ethnicity remains necessary to create the type of diverse learning environment from which myriad educational benefits flow. On that score, per order of the Fisher Court, the lower courts' review of UT's proof may not be deferential, but rather must be strictly scrutinized.
This means that UT will once again have to convince the lower court that its race-conscious admissions practices were justified due to its interest in attaining the educational benefits that flow from student body diversity, and that "no workable race-neutral alternatives" would have produced those benefits. What's more, it will have to accomplish all this before a court that has been expressly instructed to view all state uses of race as "inherently suspect."
These requirements are demanding, but they can be met.
Last summer, the Kirwan Institute for the Study of Race and Ethnicity prepared a friend-of-the-Court brief for submission in the Fisher case-filed by Sharon Davies, law professor and Executive Director of the Institute and Tracie Ransom, a Porter Wright attorney-on behalf of a national coalition of Black Male Achievement Initiatives arguing for the constitutionality of UT's admissions practices.
The brief exposed a little known reality that, even with race conscious full-file review, the number of full-time black male students enrolled in UT's entering classes has remained abysmally low.
In 2009, the last year for which enrollment numbers were available when the brief was filed, data collected and posted by the U.S. Department of Education Integrated Postsecondary Data System (IPEDS) showed that only 1.79 percent of UT's full-time first-time undergraduates were black males. This broke down to a stunning 129 black males out of a total 7,199 enrolled full-time, first-time UT Austin freshmen. And the pattern of low black male enrollments was not confined to UT; it was repeated in the entering classes of other large public flagships as well.
This reality has been obscured partly by the fact that enrollment data rarely disaggregates the numbers of black male enrollees from those of black female and other enrollees. The practice of clumping all black students together has hidden the extraordinary depth of the educational crisis young Black males actually face today. (Black women have outnumbered Black men enrolled at UT since the 1990s, and the gap is expanding rather than narrowing.) It is only when the numbers of enrolled black males are separated from those of enrolled black females that the unconscionably low numbers of black males included in UT's entering classes are revealed.
On remand, it will be important for the University of Texas to put the black male enrollment problem squarely before the Court of Appeals, and to resist any temptation to shrink from it. The picture portrayed by these data is grim. It defies the claims of those who believe that race no longer plays a major role in the life chances of American youth. It even raises questions about the genuineness of the nation's commitment to include black males among college populations in meaningful numbers. And any inclination to blame black male themselves for this terrible continuing record of exclusion simply underscores the need to expand their numbers to disrupt such stereotypical explanations, while reducing their racial isolation.
The bleak portrait that this stark evidence paints should be more than sufficient to meet Fisher's demand that UT prove that supposed race-blind means (such as admitting any high school student graduating within the Top Ten Percent of his/her class) were incapable of producing sufficient student diversity to attain the benefits that flow from it. UT's record of consistently low Black male enrollments contains what it needs to make this case.
The sad truth is, the Top 10 Percent system put in place in Texas after the devastating impact of the 1996 Hopwood ban on race-conscious admissions practices never fully succeeded in returning Black male freshmen to their already paltry numbers. In the two years prior to Hopwood (1994 and 1995), UT enrolled only 125 black male full-time first time students in its entering classes. After Hopwood banned the consideration of race in 1996, this low number dropped dramatically, by more than 50 students. In Fall 1997, UT enrolled only 73 black males among its 6,945 first-time full-time freshman class. The next year it enrolled only 81 Black males out of 6,598.
It was only with the help of the Top 10 Percent admissions system beginning in 1998 that UT began to see anemic improvement in Black male freshman enrollment rates. But they never reached the pathetically low pre-Hopwood "high" of 125.
Ultimately, UT was able to do better than that only by incorporating a limited race-conscious supplement to its Top 10 Percent system after Grutter held that carefully implemented race-conscious practices were constitutional. This change enabled the number of Black males in UT's entering classes to begin to climb. In Fall 2004, 114 black male full-time, first timers were enrolled in the freshman class, followed by 122 in Fall 2005, 144 in Fall 2006, and 164 the following year. Fall 2008 and 2009 brought more drops, however, corresponding to decreases in the overall full-time undergraduates admitted at UT. In 2009, only 129 black males were enrolled out of 7,199 full-time, first-time UT Austin freshmen.
This is hardly a record to write home about. But it should give UT the evidence it needs to defeat Ms. Fisher's claim, provided it does not flinch from shining a light on the emergency-level numbers of black males it (and other universities) managed to include in their entering classes even with race-conscious review.
No doubt some will balk at thinking about the difficulties black males have experienced gaining access to an education at UT Austin separate from their peers, particularly black women. But there is good reason to do so. While the rates of college admissions by other groups have risen over the years, black male admission rates have not. In 2002, out of the total of all students enrolled in all institutions of higher education in the U.S., black males comprised the same percentage that they had accounted for in 1976. This is a crisis warranting the use of every constitutionally-available tool.
Sharon Davies is the Executive Director of the Kirwan Institute for the Study of Race & Ethnicity and the Gregory H. Williams Chair in Civil Rights & Civil Liberties at The Ohio State University Moritz College of Law (effective July 1).