The Decision in Fisher v. Texas: What’s at Stake for Women of Color


This morning, the Supreme Court heard arguments in Fisher v. Texas, the first case on affirmative action to be heard by the court in almost a decade. At issue is University of Texas’s (UT) admissions policy which uses race as one of several factors (including academic achievement, gender, community service, geography, socioeconomic status, legacy, upbringing, athletic ability, academic and extra-curricular interests, among others) in determining admissions.

The Supreme Court has long-held that achieving racial diversity is a permissible basis for schools to consider race as a factor in admissions. The principle was set forth by Justice Lewis Powell in the 1978 case, Regents of the University of California v. Bakke , and was reaffirmed by Justice O’Connor in the 2003 case Grutter v. Bollinger, a case that examined the admissions policy at University of Michigan Law School.

The specific approach undertaken by UT in deciding admissions was developed in the wake of Hopwood v. Texas, a case which rendered unconstitutional the use of race as a determining factor in school admissions in the UT system, and which saw an alarming decline in minority students at UT schools as a result.

After the Fifth Circuit’s 1996 ruling in Hopwood v. Texas, Texas passed the so-called “Top Ten Percent Law” which, essentially, guarantees admission to every Texas resident who graduates in the top ten percent of his or her high school class. Due to the demographic composition of Texas, the implementation of the Top Ten Percent Law has resulted in robust diversity at Texas schools, generally (but not, as will be discussed below, in particular academic fields.)

After the Supreme Court’s 2003 ruling in Grutter v. Bollinger affirmed that the University of Michigan Law School could consider race as a factor in order to promote racial diversity, University of Texas seized upon this opportunity to further promote racial equality in the UT system, and began (again) to use race as one of the determining factors in its admissions policy.

UT’s admissions policy is as follows:

Applicants are separated into three groups: (1) Texas residents, (2) domestic non-Texas residents, and (3) international students. Texas residents are then divided into two subgroups: Texas residents who graduated in the top ten percent of their class, and those who did not. With one limited exception, all Texas residents graduated in the top ten percent of their class are admitted to the school. (Except that for certain schools (Business, Engineering, Kinesiology, Communication, and Nursing) only 75 percent of the slots may be filled with Texas residents so that these schools can admit some non-top-ten percent applicants.)

Those who did not graduate in the top ten percent of their class are evaluated based upon a personal achievement index and an academic achievement index. The personal achievement index is comprised of three scores: one score for each of the written essays, and one score for personal achievement. The personal achievement score, in turn, is based upon an evaluation of the applicant’s entire file. Race and gender are two of the many factors that are evaluated in determining an applicant’s personal achievement score.

The UT plan closely tracks the University of Michigan plan. Indeed, the UT plan arguably is better than Michigan’s. University of Michigan keeps track of the numbers of students being admitted from various races as it is admitting them. University of Texas does not and supporters of its policy consider it a more holistic approach less prone to become an impermissible racial quota system.

Since adopting its current admissions policy, University of Texas has seen a vast improvement in minority admissions, including women of color. As the court in Fisher noted, the result has been a balanced and diverse student body at a school that one magazine dedicated to diversity in higher education ranked “sixth in the nation in producing undergraduate degrees for minority groups.”

Any abrogation of UT’s plan will result in another dramatic decline in minority enrollment and applicants, similar to what happened in the wake of Hopwood. It will also result in the persistence of racial and gender stereotypes that hinder the progrss of women of color both in higher education and in the workforce.

As the National Women’s Law Center noted in its amicus (“friend of the court”) brief, the history of racial discrimination and sex discrimination are closely intertwined, and efforts to ameliorate either race or sex discrimination tend to benefit women of color last.

Historically, racial and gender discrimination has led to the creation of schools segregated both by race and gender. Men were trained to be lawyers and doctors, while white women were trained in areas that focused on domestic affairs like child-rearing and care-giving—areas that allowed them to remain “ladies.” White women were sent to school to learn to become teachers, secretaries, and nurses. Women of color (or “negros,” as they were called then), not held in high enough regard to be considered ladies, were trained to be hard workers in manual labor professions more suitable for their station: farming and domestic work.

Evidence suggests that such stereotypes persist today, in the way in which women of color are perceived in the classroom and workforce as unsuitable for certain types of work, especially that which involves acting in leadership roles, or jobs that involve math, science and engineering.

According to the National Women’s Law Center:

While white women thus attend college in large numbers, they are disproportionately concentrated infields that correspond to the social roles once formally assigned to them. For example, women receive77% of the bachelor’s degrees in psychology, 79.5% in education, 82% in public administration and social-services fields, and 85% in health professions and related programs. Ibid. By contrast, they receive only18.2% of the bachelor’s degrees in engineering, 18.1%in computer science, and 10.1% in other engineering-related fields. Ibid.

The effect is more pronounced for minority women, in part because they make up such a small proportion of college students overall. Black women earned only 6.5% of bachelor’s degrees in 2010, and Hispanic women only 5.1%. Black women accounted for just 3.7% of computer-science majors and 0.4% of engineering majors. Ibid. And Hispanic women were only 1.5% of the computer-science majors and 1.4% of the engineering majors.”

The statistics for master’s and doctoral degrees are equally alarming:

In 2010, black women earned just 3% of the master’s degrees in computer science; Hispanic women, 0.8%. And each group received only 0.9% of the master’s degrees in engineering.

The effect is even more extreme for doctoral degrees: In 2010, just 55 black women and 70 Hispanic women earned doctoral degrees in engineering, and 17 black women and 8 Hispanic women earned doctoral degrees in computer science, nationwide.

The story in professional schools is similar: Black women received only 4.6% of the medical degrees; Hispanic women, 2.5%. Black women received 4.4%of the law degrees; Hispanic women, 3.6%. Black women receive 3.2% of the dentistry degrees; Hispanic women 3.1%.

These statistics about the makeup of education programs are reflected in the racial and gender makeup of the workforce itself:

Men still make up a majority of doctors, architects, engineers, and politicians—professions that were long formally closed to women of color, who were unable to get the education or training needed to pursue a career in those fields. Even today, less than 5.3% of the physicians and surgeons in this country are black women; less than 6.6% are Hispanic women. Among lawyers, less than 5.3% are black women; less than3.2% are Hispanic women. And among architects, less than 1.6% are black women and less than 3.2%are Hispanic women.

Texas’s admissions policy uniquely addresses these concerns in a manner already deemed constitutional by the Supreme Court in Grutter. Indeed, UT’s plan is expressly meant to comport with Grutter.  Still, Ms. Fisher, the plaintiff in this case, cried foul.

Fisher, a young white woman who was denied admission to University of Texas-Austin and who went on to graduate from the University of Louisiana, does not seek to overrule Grutter entirely, but simply to strike down UT’s plan. (Only if the UT plan is deemed constitutional under Grutter, does Fisher ask the Supreme Court to examine whether Grutter has any remaining constitutionality.)

Fisher argues that because the Top Ten Percent Law provides a critical mass of minorities, that consideration of race is unnecessary and an unconstitutional attempt to achieve racial balancing.

Her claim boils down to, “Enough is enough.” And, indeed, she may be correct as far as achieving racial balance in the school, department, major, AND classroom. (As Lyle Denniston of SCOTUSblog points out.) 

But the court in Fisher notes that Grutter permits that. Grutter is a case about the importance of racial diversity and Texas’s plan is about racial diversity and is based on the principles set forth in Grutter.

Moreover, as the court in Fisher points out, while the Top Ten Percent Law increase the number of minorities at UT, generally, it does not advance the underlying goals of the UT’s Grutter plan, which is to prepare its students to become leaders in the community:

UT’s stated goal is to “produce graduates who are capable of fulfilling the future leadership needs of Texas.”This objective calls for a more tailored diversity emphasis. In a state as racially diverse as Texas, ensuring that graduates learn to collaborate with members of racial groups they will encounter in the workforce is especially important. The 2004 Proposal concluded that a race-conscious admissions program was necessary at UT specifically because “from a racial, ethnic, and cultural standpoint, students at the University [were] being educated in a less-than-realistic environment that [was] not conducive to training the leaders of tomorrow.”

The Top Ten Percent Law alone does not achieve this goal because under that rule, the top ten percent are guaranteed admission to the University of Texas schools generally, but not necessarily to the program, major, or department the student desires because every offer of admission made by UT is tied to a particular department. Disallowing Texas to consider race in determining the makeup of the departments and particular schools leads to the sorts of racial clusters in certain departments and schools that detrimentally effect students of color, including women of color:

The reality is that the Top Ten Percent Law alone does not perform well in pursuit of the diversity Grutter endorsed and is in many ways at war with it. While the Law may have contributed to an increase in overall minority enrollment, those minority students remain clustered in certain programs, limiting the beneficial effects of educational diversity. For example, nearly a quarter of the undergraduate students in UT’s College of Social Work are Hispanic, and more than 10% are African-American.

In the College of Education, 22.4% of students are Hispanic and 10.1% are African-American. By contrast, in the College of Business Administration, only 14.5% of the students are Hispanic and 3.4% are African-American. It is evident that if UT is to have diverse interactions, it needs more minority students who are interested in and meet the requirements for a greater variety of colleges, not more students disproportionately enrolled in certain programs. The holistic review endorsed by Grutter gives UT that discretion, but the Top Ten Percent Law, which accounts for nearly 90% of all Texas resident admissions, does not.

UT’s uniquely holistic approach benefits not just students of color, but white students as well. If the court strikes down the plan, UT will no longer be able to consider the race of a white male high school student seeking entrance to, for example, the Nursing School in addition to no longer being able to consider the race of a black female high school student seeking admission to the school of Engineering.

If the Supreme Court strikes down the UT Plan, UT may continue to be a racially-diverse school, generally, but the benefits of racial diversity will not have its intended effect on minorities, including women of color, aspiring to join certain fields like law, architecture, medicine, engineering, and politics. And certainly, the goal of preparing all UT students, irrespective of color, to participate more fully in a culturally-rich and diverse world will be undermined.

Additionally, should the Supreme Court strike down the UT plan, the stereotypes regarding the capability of women, and especially women of color, to succeed in specific areas of study, and the resulting problems of homogeneity in the workforce in Texas, particularly in fields like law, business, politics, and science, will persist.

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