Patterico's Pontifications


Court: U.T. Austin May Discriminate on the Basis of Race

Filed under: General — Patterico @ 6:27 am

I’ve been meaning to get to this, but work and other demands have interfered. Two judges say it’s perfectly OK for the University of Texas at Austin to discriminate on the basis of race:

Ruling that the Supreme Court has not barred all use of race in choosing the entering class of students at state universities and colleges, a federal appeals court on Tuesday upheld — for a second time — the admissions policies at the University of Texas in Austin. The two-to-one decision by the U.S. Court of Appeals for the Fifth Circuit followed the Supreme Court’s return of the case of rejected white applicant Abigail Fisher for a focused new look at the need for a race factor.

The Dog Trainer tells us:

“To deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience,” Higginbotham said in the 2-1 opinion for the U.S. 5th Circuit Court of Appeals in New Orleans.

“Universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity,” Higginbotham wrote. “This interest is compelled by the reality that university education is more the shaping of lives than the filling of heads with facts – the classic assertion of the humanities.”

The decision is here (.pdf). It’s 2-1, with two reasonably conservative judges in the majority: Patrick Higginbotham and Carolyn King. It’s not entirely their fault. Anthony Kennedy made this possible. But they could have gone another way. Dissenting is Judge Emilio Garza, who was once in the running for a Supreme Court spot himself. Judge Garza says, referencing a Texas law that calls for automatic admission of the top ten percent of students in the state’s high schools:

By accepting the University’s standing presumption that minority students admitted under the Top Ten Percent Law do not possess the characteristics necessary to achieve a campus environment defined by “qualitative diversity,” the majority engages in the very stereotyping that the Equal Protection Clause abhors.”

Once again, thank you Anthony Kennedy.

33 Responses to “Court: U.T. Austin May Discriminate on the Basis of Race”

  1. Anthony Kennedy got out of the left side of the bed that day.

    dfbaskwill (a0813f)

  2. Admissions policies of the UT system have to be approved by the Board of Regents who are appointed by the Governor with the approval of the Senate? Another “Kennedy didn’t save us from dumbass voters” is more like it.

    nk (dbc370)

  3. The word discrimination now means that we can exclude people on the basis of race if we want to.

    The word marriage now means that we can marry people of the same sex if we want to.

    The word migrant now describes people who come to stay if they want to.

    The word law means something that need not be enforced if we don’t want to.

    The words Women’s Health now mean permission to kill the very young, born or unborn, if we want to.

    We don’t want traditional values. What’s right is what we want to be right. This is modern morality, this is modern freedom. Welcome to the new age.

    Amphipolis (d3e04f)

  4. R.I.P. Johnny Winter, blues guitarist supreme
    Run, don’t walk, to your favorite music streaming service and download his first album, “Johnny Winter”.
    Always trust music recommendations from Icy.

    Icy (666709)

  5. The decision is here (.pdf). It’s 2-1, with two reasonably conservative judges in the majority:

    No shortage of squish during an era when the center of the political spectrum has shifted left. After all, it wasn’t all that long ago when only uber-leftists would have either supported or shrugged off matters like same-sex marriage or been rather complacent about (or not shocked by) the shenanigans of people like Barack Obama or Bill Clinton.

    Mark (2a5744)

  6. Where’s Milhouse? I need that scrip that blocks particular commenters’ comments.

    Actually, I’ll support Kennedy even more. In Fisher I he found in favor of Fisher, reversed the judgment in favor of the university, and remanded with directions to apply strict scrutiny to UT’s admission’s policies. And it was also an 7-1 decision with only Ginsburg dissenting. He did do all he could to save Texan voters from their decision to elect a governor who gave plum appointments on the Board of Regents to cronies who approved dumb admissions policies.

    nk (dbc370)

  7. 1) pardon my legal in-expertise, but doesn’t this sort of in contradiction the UM ruling?
    or has it become “we can let you have it (race based admission) when we feel like it, but don’t count on it”
    2) Amphipolis- To paraphrase: “meet the new age, just like the old age”, when “Everyone did what was right in their own eyes.” at the end of Judges (the OT book, not “The End of Judges”, a novel yet to be written)
    3) In something I read recently, the idea was that every group or institution will drift left, unless their is a specific and deep explicit commitment to maintain a conservative perspective. (I think it is the old serpent thing, “Did they really say that? Surely they didn’t really mean that“.

    MD in Philly (f9371b)

  8. Judge King — for whom I had the privilege of being a law clerk in 1980-1981, in her second year on the bench (she’s now the record-holder for longest active service on the Fifth Circuit), and for whom I have vast personal and professional regard — was a Jimmy Carter appointee to a newly created seat. “Reasonably conservative” is a fair characterization of her in my own judgment, which is to say she’s conscientious about following precedent and avoiding overt judicial activism. But to the extent the Fifth Circuit is perceived to have a “left wing,” she’d be on it, and it frankly would have been surprising to me to see her vote the other way on this particular case.

    I haven’t read either the majority opinion or the dissent yet. I plan to do that later in the day.

    But I know the arguments, and the background, of the case. And beyond that, I know that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. So I very much hope — and I believe I have good grounds for that hope — that the Chief Justice will use all his influence to ensure that certiorari is granted in this case. History and circumstance, from before the Civil War through Sweatt v. Painter (which telegraphed Brown v. Board of Education) and since, make this the absolutely appropriate case in which to set a new landmark precedent on color-blindness for the Twenty-First Century.

    Beldar (fa637a)

  9. One might reasonably ask: How does this help the prospective students who are excluded? Their educational experience has been utterly sacrificed to provide some tiny but unquantifiable change in the experience of others. As if a campus that is 6% black is fundamentally different as one that is 8% black.

    Kevin M (b357ee)

  10. BTW, the top-10% thing is kind of a red herring. All it says (like the similar program in CA) is that the top 10% of the high school cohort is admitted to UT. Not necessarily UT-Austin. I suspect that UT has campuses that differ in stature and that Austin is likely one of the more selective ones. In CA there is some difference between being admitted to UC Berkeley and UC Dominguez Hills, for example.

    This fight seems to be wrt campus assignment, not admission. I suspect that other state universities will have similar issues and this will eventually get back up to the Supremes.

    Kevin M (b357ee)

  11. If you want to take it there, Kevin, this plaintiff’s grades and SAT’s scores, as the Court pointed out, would not have qualified her for admission to UT under any admissions policy for the number of seats available, except maybe one that admitted only white students. Maybe. All the people with funny names and funny skin and hair who beat her out had better academic credentials than she did.

    nk (dbc370)

  12. UT/Austin

    nk (dbc370)

  13. MD, this case adopted the more stringent test of strict scrutiny for race-conscious admissions policies that Kennedy wanted in his dissent in Grutter.

    nk (dbc370)

  14. nk,

    then why did she get one vote on the court?

    Kevin M (b357ee)

  15. Some animals are more equal than others.

    But some individuals believe we can negotiate our rights with people such as these.

    NJRob (5da6c8)

  16. #10, Kevin M, there is no University of California campus at Dominguez Hills. There is however a California State University campus there. The UC system is distinct from the State College system, although both are recognized as part of the overall state supported public higher education system along with the city and community colleges.

    ropelight (d85c89)

  17. I really don’t get this then. If she was not qualified on a race-neutral basis as you assert, what is the controversy? Were other white or Asian students with better academic qualifications excluded in favor of blacks or Hispanics?

    Kevin M (b357ee)

  18. #10, Kevin M, there is no University of California campus at Dominguez Hills.

    Fine, whatever. UC Riverside if you prefer. The point is the same.

    Kevin M (b357ee)

  19. .==This fight seems to be wrt campus assignment, not admission.==

    That is an interesting point Kevin M. Like many states with multiple campuses, our premier state school also has its main campus and then a second satellite campus, UIC in Chicago, which started small and has grown into big. However, much of the curriculum and academic emphasis (and GPA requirements to get in) are different between the two school campuses that carry the UI designation. And one is not exclusively but certainly moreso a city commuter school while the main one downstate is mostly a live on campus for four or five years experience and has many more national and international attendees in addition to academically top-ranked IL kids who don’t go Ivy. There is a definite academic pecking order in most state school systems and lowering standards does not seem like a good way to help anybody in any of them.

    elissa (1d9a3d)

  20. The Court kind of glosses over her standing. As best as I can figure, the $100.00 application fee was enough. If you can figure it out.

    nk (dbc370)

  21. #18, Kevin M, all UC campuses are required to adhere to the same standard admissions requirements – the top twelve and a half percent of CA high school graduates. Thus variations, as you point out, in admissions among UC campuses are largely ones of degree. The flagship schools, Berkeley and UCLA, are able to select entering students from among the very highest achieving high school and transfer applicants, the cream of the crop, while other UC campuses select from a broader pool of still highly qualified students. Of course, Affirmative Action, diversity, and other quota manipulations fall well outside the regular admissions process and are exempt from the quality standards demanded of regular applicants.

    Currently there is growing concern within the UC system over artificially excluding very high achieving Asian Americans. So many AA’s do so well in high school and on standardized tests they easily qualify for UC admissions in numbers well beyond their overall population percentages.

    As the more selective UC schools struggle to admit more and more less qualified Black and Hispanic students to satisfy diversity demands they’re simultaneously excluding exceptionally qualified AAs purely on the basis of race. That’s racism straight up, and it’s coming to a head, and it’s going to blow-up in UC’s face.

    ropelight (d85c89)

  22. The Fisher court opinions indicate the Top 10% rule — designed as a racially neutral admissions policy for UT-Austin, Texas A&M, and Texas Tech — became a 75-25 plan, primarily because UT-Austin administrators wanted the latitude to admit more minority applicants. Thus, 75% of applicants at UT-Austin are admitted under the Top 10% rule and 25% are admitted pursuant to an holistic, affirmative action-type review. In addition, as a result of increased applicants and a smaller pool for automatic applicants, Top 10% admissions at UT-Austin vary by year but are typically the Top 7%.

    Mitch (8c79bc)

  23. It’s true that Fisher didn’t qualify under the Top 10% law, but I think her argument was with the 75-25 formula. She argued the Top 10% law was producing sufficient levels of diversity at UT-Austin so there was no need for holistic consideration based primarily on race. Thus, I think her complaint was that there was no need for holistic admissions reviews and, if there is, it shouldn’t be weighted for race or factors associated with race.

    Mitch (8c79bc)

  24. So basically, as a Caucasian fighting for civil rights in the 60’s, I was fighting for the then racially oppressed to get special considerations and for my own race to become the oppressed? Funny, I was smart enough in my youth to recognize the hate and un-American nature of racial discrimination yet stupid enough to believe the talking heads when they proclaimed we should judge a person by the content of their character.

    So now we have the people and classes that it’s okay to be prejudiced against and discriminate against like Caucasians, Jews, Christians, Asians, heterosexuals and males. And we have the preferred and protected people and classes like blacks, Moslems, atheists, homosexuals, Hispanics, and more. Basically the entire civil rights movement was an insidious power grab. I suppose I can chalk it up to just more proof that everything the left touches it destroys or turns inside out.

    Hoagie (4dfb34)

  25. Hoagie (4dfb34) — 7/17/2014 @ 9:50 am

    Do you think that some of the others, including the leaders at the time, really did believe judging by the content of character, while perhaps others were knowingly lying at the time?
    And that since then some who were really for equality have died off, been coopted by the dark side, or just elbowed out of the way by those who put personal ambition as a race-hustler over equality?

    I remember a number of years ago when Charles Pickering was slimed by the dems, esp chuck schumer, and the brother of Medgar Evers spoke up in Pickering’s defense.
    It is my understanding that King might have fallen into some of the traps of leftist thinking, but I always thought he really did believe the content of character and would never have wanted preferential treatment, just equal.

    MD in Philly (f9371b)

  26. I hadn’t thought about it before reading Patterico’s post, but I think he’s right that Anthony Kennedy is to blame for making it easier for college administrators to have so much authority and so little accountability when it comes to race-based admissions.

    Mitch (8c79bc)

  27. Do you think that some of the others, including the leaders at the time, really did believe judging by the content of character, while perhaps others were knowingly lying at the time?

    Well, all I know is I fell for the high flyin’ rhetoric, MD in Philly. And being like yourself, from Philly, I saw first hand the riots, fires and murders of the 60’s and was appalled. And I must say even today, while I was marching for racial equality the blacks in North Philly and South Philly were burning the city. I was doing the hippie crap in Rittenhouse Square while the people I was marching for were tearing up the joint. But I couldn’t see it because I was 17 and I had a just cause. Now I’m 63 and can see as a white, Christian, heterosexual, male, Vietnam vet and 40 year businessman I’m directly in the crosshairs of what the left hates. Hell, all one has to do is read vota and he’ll prove it.

    Hoagie (4dfb34)

  28. Hoagie, we’re going to get you a DSC for reading vota, that is Above and Beyond the Call of Duty.

    askeptic (efcf22)

  29. Well, you know askeptic, 40 years ago my country called and I answered by volunteering, not being drafted. They put an M24 in my hands and said “fight communist tyranny”, and I did. I sent almost four score of the enemy down to meet Marx. Now this clown in the White House and his leftist minions say they want to “redistribute” what I’ve earned all my life, but insist I didn’t build it. And they have the gall to infer I shouldn’t be able to own a gun. Go figure. And guys like vota, who NEVER lifted a finger to fight for this country, who never made a payroll, say we “eurotrash” should self deport, but any asshole who manages to cross the Rio Grande automatically becomes an American. Bull. We know who the real Americans are.

    Hoagie (4dfb34)

  30. BTW askeptic, to a soldier and warrior NOTHING is Above and Beyond the Call of Duty. And make no mistake, we were Soldiers.

    Hoagie (4dfb34)

  31. Well, it’s going to get worse before it gets better.

    askeptic (efcf22)

  32. we were Soldiers – and young!

    askeptic (efcf22)

  33. Where’s Milhouse? I need that scrip that blocks particular commenters’ comments.

    Sorry, it stopped working when the redesign happened, and my JavaScript wasn’t up to rewriting it. Now that you mention it I might have another go.

    Milhouse (b95258)

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