"(Race or ethnicity) should not be considered when applying to the University of Texas"  Abigail Fisher (1)

Miss Fisher, who had been rejected for admission to the University of Texas  (UT) in 2008,  has asked the US Supreme Court to rule that the policy of UT  that considers an applicant's race among other factors is unconstitutional.   UT admits the top ten percent of the graduates of every high school in the state,  (the Ten Percent Rule) and then admits other students on the basis of  other factors, such as  community service, extra-curricular activities, work experience, awards and  race or ethnicity.  About 75% of admissions are based upon the Ten Percent Rule, and the remainder on the basis of the other criteria.  Plaintiff Fisher was apparently not among the top ten percent at her high school, and claims that she would have been admitted to UT were it not for the  consideration of race that placed some minority students ahead of her.

 The most relevant  precedents are  Regents of  the University of California vs Bakke (2)  and Gutter v Blollinger (3). In Bakke the Court held that  race may be considered in medical school admissions,  since that would promote a diverse  student body.  In Gutter the Court upheld a similar  practice  with respect to admissions to the Law School of the University of Micihigan.  

You might reasonably conclude that the Supreme Court will  follow the precedents in Bakke and Gutter  in deciding  that UT has the same right to  favor diversity in its entering class  that  U of California and U of Michigan had in those cases.  Except that the Ten Percent Rule cited above changes everything:  since there are plenty of  all (or nearly all) black and Hispanic  high schools in Texas,   the Ten Percent Rule  assures diversity automatically!  If UT  admitted the top ten percent of all public HS graduates in the state,  the entering class might be all white and Asian, but by taking  the best students of every high school,  diversity is guaranteed.  Neither the UC Medical School nor the U of Michigan Law School  had any rule of that kind, so without the diversity provision of the admission policies that were challenged,  those  graduate schools might have been all white.

Miss Fisher might have secured a place at UT by excelling in  one or more of the criteria such as  community service or extra-curricular activities,   and been admitted to UT  among the 25% of the entering class that did not qualify  under the Ten Percent Rule.  But there is nothing she could have done to qualify as a minority applicant, and that is why the rule was unfair to her.  A public university, such as UT, has an obligation to treat all applicants fairly, on the basis of admissions policies that give all such applicants an equal chance to compete for the coveted places in the entering class.   Since diversity was assured by the Ten Percent Rule, UT was wrong to promote even more diversity by showing preference for  minority students over others  for the remaining spots.

However, even if  race and ethnicity were not considered at all in the admissions process,  there is no reason to believe that Abigail Fisher, in particular, would have been admitted  ahead of  other white applicants who were also rejected.   Since white applicants were not all barred from UT,  this case is fundamentally unlike  those  challenging racial exclusion policies in the past. She was not rejected because she was white, she merely faced an "uneven playing field."  So, I contend that the Court will rule that  UT's consideration of race  in this case is unconstitutional because it was not necessary to achieve diversity, but that Fisher  has no claim against UT, since she may not have been admitted anyway.

Gerald S Glazer

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 (1) Associated Press,  October 11, 2012

(2) 438 US 265

(3) 539 US 306 

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