Talk To Me Like I’m Stupid: The Texas Affirmative Action Case.

As you probably know, the Supreme Court heard oral arguments this m

orning in a closely watched affirmative action case that could have epic consequences for the way colleges and universities consider race in admissions.

The state of Texas attempted to diversify its student body in a race-neutral way that could survive a constitutional challenge. Their novel idea: granting automatic entry to any of the Lone Star State’s institutions of higher education for any Texas high school student who finished in the top 10 percent of her class. Because Texas’s public schools, like those around the country, are so segregated, the plan would ultimately diversify the student bodies of its public colleges and universities — and its flagship, the University of Texas at Austin, in particular — as the top 10 percent of kids from an all-black high school in Dallas would get in, as would the top 10 percent of kids from a mostly Hispanic high school in El Paso.

The overwhelming majority (80 percent) of the kids who got into UT-Austin in ’08 did so via the Ten Percent Plan. The rest got in through a formula that the University of Texas uses to take a “holistic” look at specific student’s story: “the socio-economic status of the applicant’s family; the socio-economic status of the applicant’s high school; whether the applicant is from a single-parent home; whether a language other than English is spoken at home; family responsibilities; and the applicant’s SAT score compared to the average score of the applicant’s high school.” Race is considered here, too.

The applicant’s high school grades and SAT are combined into an “Academic Index” score, while the “holistic” stuff is thrown into a computer which spits out a “Personal Achievement” score. (The highest possible Personal Achievement score is 6.) The school says that race doesn’t count here any more than any of the other factors and “is considered in conjunction with all other factors, not in isolation.” UT also doesn’t tally the races of the applicants as it does this, so no “quotas.”
After the files of the non-top-10% applicants are scored, they are plotted on a matrix for the school or major for which admission is sought, with the Academic Index on one axis and the Personal Achievement Index on the other. After considering the number of students in each cell and the available spaces for a particular major, admissions officers draw a stair-step line on the matrix, dividing the cells of applicants who will be admitted from those that will be denied. For each cell, admission is an all-or-nothing proposition: all the applicants in a cell are either admitted or denied.

Which brings us to Abigail Fisher, the petitioner in this case, who says that she was not granted entry to UT-Austin because she’s white, and that UT’s policy violates the Constitution because it considers race. (There was a second petitioner originally, but she dropped out of the case.) Fisher, who has since graduated from Louisiana State, applied to UT-Austin for fall 2008, with a high school GPA of 3.59 and an SAT score of 1180 out of 1600. Okay scores, but not spectacular.

UT said in its amicus brief that the given how competitive the ’08 freshman class was, Fisher “would not have been admitted even if she had received ‘a ‘perfect’ PAI score of 6.'” Fisher was also denied entry to UT’s (since-scuttled) sumer program, which gave provisional admission to kids who were denied outright if they completed certain academic requirements over the summer. The school said that one black kid and four Latin@ kids with Academic Index/Personal Achievement Index scores that were the same or lower than Fisher’s were admitted to the summer program, but so were 42 white kids with identical or lower schools. “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,” the university wrote. [Emphasis theirs.]

So here’s my question for the legal types (separate from the constitutionality of UT’s admissions process): could someone break down for me how Fisher has legal standing to bring this suit? Is it clear that she has a redressable grievance?



Gene "G.D." Demby is the founder and editor of PostBourgie. In his day job, he blogs and reports on race and ethnicity for NPR's Code Switch team.
  • freckles

    So, the issue is this: Like in Roe v. Wade, this falls under the exception where an issue can be considered if it is “capable of repetition, yet evading review.” In Roe v. Wade, Roe was obviously no longer pregnant, as 9+ months had passed. She also had no standing to argue for all other women, either. This exception makes sure that justice can be served, even if it no longer affects the person in question.

    The standard is one long-established in the Supreme Court and why we can hear a case such as this.

    • ah, gotcha.

      The argument seems to be that she was injured because of race, but it doesn’t seem altogether clear that she was even injured.

      • Nakia

        There is a 3-pronged test for standing at play. Fisher had to have have suffered:
        1. an actual injury in fact
        2. that is causally related to what she alleges was done to her
        3. which could likely be redressed by the court

        Her counsel is saying that the injury to her is not that she didn’t get to graduate college (since she did) or that she lost out on much beyond her application fee and deposit, but that the unconstitutionality of the policy itself resulted in her injury – denying her the ability to compete on an equal footing. I haven’t read the briefs but I’m guessing they’re relying on Texas v. Lesage. That case is wobbly in itself so that’d explain why standing is not quite clear in this case.

  • I just have to take a moment to be astonished that a 3.59 GPA and a 1600 SAT are no longer considered good enough to get into UTA. The more I learn about current college admissions the more I realize how very outdated my memories are.

    • Hey. I misstyped her score. she got an 1180 out of 1600.

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