Texas, surprisingly, is proving to be a model for maintaining diversity in university admissions.

Lost amid conflict in the Middle East and the political battles in Washington is the news that a federal appeals court had once again upheld the process the University of Texas is using to decide which students to admit.

And if the decision survives an expected appeal to the U.S. Supreme Court, it would give fresh life to affirmative action as a tool for choosing incoming freshmen.

For this case goes to the heart of the issue. It stems from the complaint of Abigail Fisher, who was rejected for admission at UT in 2008.

Ever since, she has claimed that the university did not accept her in order to admit less qualified black and Hispanic students.

Despite the fact that she was among the 93 percent of white, black and Hispanic applicants the university did not accept, Ms. Fisher and her backers keep insisting she was a victim of the majority white university’s preference for racial and ethnic minorities.

In fact, the university has stated in court that Ms. Fisher would “not have received an offer of admissions to the fall 2008 freshman class (even) if she had been a minority.”

First, Ms. Fisher did not finish in the top 10 percent of her high school graduating class, the main way that freshmen are now admitted to UT and other Texas schools. Texas adopted the 10 percent rule to reduce concerns over affirmative action.

In 2008, 81 percent of UT’s freshmen slots were automatically granted to students graduating in the top 10 percent their high school classes.

The remaining openings were filled after the university conducted what it calls its holistic review, which looks at such factors as demonstrated leadership qualities, extracurricular activities, honors, awards, essays, work experience, socioeconomic status, family composition, family responsibilities, the applicant’s high school and, finally, race.

The criteria are not ranked or assigned specific percentages.

Ms. Fisher had to compete with 17,131 other applicants for the remaining 1,216 seats for Texas residents — and like most applicants, she fell short.

Galled, she went elsewhere, but sued because she felt destined to attend UT.

And despite the array of other criteria, she, and those who have funded her lawsuit, chose to blame her failure to gain admission strictly on race. Her suit claims any consideration of race violates the equal protection clause of the 14th Amendment to the U.S. constitution, a provision that was first adopted to protect former slaves from Southern lawmakers.

After a review of the evidence, the appeals court determined that UT’s holistic review process was appropriate and constitutional given the huge number of students seeking the relatively few remaining places at the school.

The court found that Ms. Fisher’s lawyers were wrong in claiming that the review process gave preference to nonwhite students. Instead, the data show the process favors white students, the court stated.

Of the incoming class of 2008, “holistic review contributed 19 percent of the class of Texas students as a whole — but only 12 percent of the Hispanic students and 16 percent of the black students, while contributing 24 percent of the white students.”



In 2003, the Supreme Court, in Grutter v. Bollinger, upheld the constitutionality of affirmative action in a case involving the University of Michigan Law School. The court’s 5-4 majority accepted the assertion that diversity is essential to the educational mission of universities, but required that remedies be narrowly tailored to achieve the goal of having nonwhite students as part of the student body.

The University of Texas, following a long, documented history of racial animus toward nonwhite students, complied with that Supreme Court standard.

That’s what the 5th Circuit Court found in 2011 when it first upheld the university’s process as lawful, and now it has done it again after the U.S. Supreme Court sent the case back for a second look.

This high-stakes case is likely headed back to the nation’s highest court.

Soon enough, we’ll know whether the conservative-dominated Supreme Court will seek to use this case to overturn its own precedent allowing affirmative action or accept the appeals court’s second review.

The writer is editor-in-chief of the News Service of the National Newspaper Publishers Association.