Fisher v Texas: University of Texas Affirmative Action Briefs Support Student Diversity

FILE - In this Jan. 7, 2008 file photo, attorney Donald Verrilli, who argued against the use of a three drug cocktail used to
FILE - In this Jan. 7, 2008 file photo, attorney Donald Verrilli, who argued against the use of a three drug cocktail used to execute inmates, gestures as he talks to media outside the Supreme Court in Washington, after arguments about the lethal injection death penalty. The Supreme Court on Monday, Nov. 14, 2011, promised an extraordinarily thorough springtime review of President Barack Obama's historic health care overhaul _ more than five hours of argument, unprecedented in modern times _ in time for a likely ruling affecting millions of Americans just before the presidential election. Verrilli, the current solicitor general, is expected to defend the law before the justices. (AP Photo/Evan Vucci, File)

For Cris Rubio, there wasn't much suspense about what came after he graduated high school in 2003. Rubio had been second in his class for much of his four years — he eventually finished fourth — and under the Texas Top Ten Percent Plan, any student in the top 10 percent of their high school class, by grade-point average, was given automatic admission to any state public university. Rubio knew he would leave San Juan, Texas, his overwhelmingly Latino hometown near the border, to head to the University of Texas at Austin, the state's sprawling, flagship university more than 300 miles away.

"It's a really good school but that kind of hurts it because everyone wants to go there," said Rubio, who graduated UT in 2007 with a mathematics degree. "When it comes to choosing a school, everyone's in the state is kind of" leaning toward UT. Eight out of every 10 students admitted as freshman to UT-Austin in 2008 got in under the rule.

The state adopted the 10 percent plan to bolster diversity after the university's previous affirmative action policy was struck down in court. State leaders said they hoped that pulling in the best students from schools that are predominantly black or Latino would achieve diversity with a race-neutral policy.

But it’s the selection of the remainder of the students that's the focus of a closely watched U.S. Supreme Court case that may have seismic implications for the role of race in college admissions. Students who don't get in under the 10-percent plan get in using a metric that includes academic performance and personal achievement. Personal achievement factors in "special circumstances," including socioeconomic status, family responsibilities, test scores relative to classmates, and race. (None of the factors are weighted or considered alone.)

Abigail Fisher, the plaintiff in the case, was not accepted to UT in 2008, and filed a lawsuit that argued that the policy that considered race violated her constitutional rights. Another plaintiff, Rachel Multer Michalewicz, has since dropped out of the case. The court is set to hear arguments on Oct. 10.

Universities, labor unions, nonprofits and government agencies filed legal briefs in support of the university's diversity plan on Monday. Many argued that the school and government have a “compelling interest” in promoting campus diversity -- a standard the Supreme Court has held that a school’s must meet for considering race in admissions.

Allen West, the outspoken Republican congressman from Florida, filed a brief in support of Fisher in May, saying the consideration of race was unconstitutional.

Donald Verrilli, the U.S. solicitor general, sided with the university. "Race is not considered on its own, and it is never determinative of an applicant's admission by itself," Verrilli said. "Rather, race is one of a number of contextual factors that provide a more complete understanding of the applicant's record and experiences. That is a far cry from impermissible racial balancing."

The University of Texas filed a brief last week that argued that race was a minor factor. Fisher’s GPA of 3.56 and SAT score of 1180 would not have gained her acceptance in the competitive 2008 freshman class, even with a perfect academic index score, the school said.

Petitioner also was denied admission to the summer program, which offered provisional admission to some applicants who were denied admission to the fall class, subject to completing certain academic requirements over the summer. ... Although one African-American and four Hispanic applicants with lower combined AI/PAI scores than petitioner’s were offered admission to the 16 summer program, so were 42 Caucasian applicants with combined AI/PAI scores identical to or lower than petitioner’s. In addition, 168 African-American and Hispanic applicants in this pool who had combined AI/PAI scores identical to or higher than petitioner’s were denied admission to the summer program.

Elise C. Boddie, the litigation director for the NAACP Legal Defense Fund, which filed a brief in support of the University of Texas, said the plan was actually tailored to meet rules the Supreme Court set. “The university doesn’t track the number of African American students or Latino students who are getting in,” Boddie said. “The irony is that the University of Texas did what the Supreme Court told it to do: don’t have points, don’t have a quota.”

For Rubio, the point is moot. “If you were top-10 percent, it's probably because you worked your butt off,” Rubio said. “Call it cockiness or confidence or whatever, but I felt like I belonged, regardless.”