UT files response, asks Supreme Court to not review lawsuit

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 UT is filing a response today that asks the U.S. Supreme Court not to review a lawsuit challenging its consideration of race in the undergraduate admissions process, vice-president for legal affairs Patricia Ohlendorf said.

The lawsuit Fisher v. Texas was originally filed in 2008 on behalf of two white students denied admission to the University. UT’s filing with the court responds to the suit’s appeal to the Supreme Court, which only one of the students pursued. Ohlendorf said UT argues in the response that the University is in accordance with a 2003 Supreme Court case, Grutter v. Bollinger, which allows universities to use race in the admissions process to promote diversity.

“UT believes that its arguments are strong,” Ohlendorf said. “UT believes that its admissions policy is consistent with the U.S. Supreme Court opinion in Grutter v. Bollinger.”

Race and ethnicity is one of eight special circumstances that, along with personal and academic achievement, are factored into the freshman admissions process, according to the University’s website.

Fisher v. Texas was defeated by an Austin district court and the 5th Circuit Court of Appeals. In a 9-7 vote the 5th Circuit Court of Appeals refused to re-hear the case. These lower courts have ruled UT’s policy is in accordance with the Supreme Court decision in Grutter v. Bollinger.

In an opinion written for the 5th Court of Appeals by judge Emilio Garza, he concurred UT was within legal bounds set down by the Supreme Court but was critical of the University’s use of race as a contributing factor to admission in part because UT already had existing policies that effectively promoted diversity.

“The University was able to obtain approximately 96 percent of the African-American and Hispanic students enrolled in the entering in-state freshman class using race-neutral means,” Garza said.

The race-neutral policy Garza referred to is the state law passed in 1997 that mandates UT to admit all Texas public school students in the top 10 percent of their graduating high school class. Garza said the fate of UT’s admissions policy rests in the hands of the Supreme Court.

UT’s top 10 percent rule has changed since the suit was filed, but the Supreme Court will base it’s decision on the 2008 policy.

“The Supreme Court has chosen this erroneous path and only the court can rectify the error,” Garza said.

A Supreme Court ruling striking down the race-based policy is something Edward Blum, a UT alumnus and member of the Project on Fair Representation, said his group supports.

“We disapprove of virtually all considerations of race in public policies,” Blum said. “What makes the UT case unique is that UT already had a law in place, known as the top 10 percent law, that was doing a better job of promoting diversity than the race-based policy.”

Blum said the Project for Fair Representation, a nonprofit legal defense fund, is paying for Fisher’s lawyers, and he expects at least six outside agencies to file briefs in support of Fisher today.

For past hearings of the lawsuit, the National Association for the Advancement of Colored People Legal Defense Fund has filed briefs in support of the University on behalf of the UT chapter of the Black Student Alliance. Representatives of the organization did not indicate it had filed a brief with the Supreme Court.

Cortney Sanders, government freshman and political action chair for the BSA, said she did not wish to speak of her or the BSA’s opinions of the lawsuit, but she encouraged her classmates to research the case’s factual background.

“The fact is the plaintiff was in the top 12 percent of her class and did not qualify for automatic acceptance,” Sanders said.

She said Fisher could have gotten points in the holistic admissions process for non-top 10 percent students by participating in extracurricular activities, being an athlete or demonstrating musical ability.

“She chose not to do those things,” Sanders said. “It’s a point system. Students need to know that.”

UT’s admission policy also may be affected by new guidelines released last week by the Department of Justice and Department of Education that provide approved methods for increasing racial diversity. The guidelines focus on how universities should implement policies if they find race-neutral approaches to be ineffective to achieve the diversity the institution seeks.

Previous guidelines administered in 2008 under the Bush administration stated, “before using race, there must be serious good faith consideration of workable race-neutral alternatives.”

UT spokesman Gary Susswein said University officials are reviewing the guidelines but could not speak about the admissions policy due to the pending lawsuit.

The Supreme Court is expected to decide in mid-January if it will hear the case, Blum said.

Printed on Wednesday, December 7, 2011 as: UT asks court not to review affirmative action lawsuit