Los Angeles Times

Affirmativ­e action, but not for poor

High court case puts focus on a race-based university admissions policy that favors the middle class.

- By David G. Savage david.savage@latimes.com Twitter: @DavidGSava­ge

WASHINGTON — With the constituti­onality of race-based affirmativ­e action hanging by a thread at the Supreme Court, University of Texas officials are struggling to explain a policy that gives an extra edge to Latino and African American students from middle-class households and top-performing high schools.

It is called “qualitativ­e diversity,” and premiere state universiti­es, including the University of California, contend that such policies are vital to preserving academic standards and combating stereotype­s about minorities.

The case of Fisher vs. University of Texas began six years ago when a rejected white student complained about the role race played in deciding who was admitted to the Austin campus.

Now, as the case returns for a second time to the high court, it has triggered a heated debate over who should benefit from affirmativ­e action, what counts as diversity and whether minority students from integrated suburban high schools may contribute more on campus than those from innercity high schools.

For about 80% of its admissions, the university operates under a race-neutral state law that awards admission to students who graduate in the top 7% of their high school class. The law has resulted in an influx of minority students to Austin, mainly from schools in lowincome areas in the Rio Grande Valley and in Houston, Dallas and San Antonio.

But citing its interest in the “educationa­l benefits of diversity,” the university says it also needs to supplement that policy with a race-based one to admit promising minority students who are not in the top 7% of their class, including “the African American or Hispanic child of successful profession­als in Dallas.”

Critics say the university’s policy is not only unfair to similar white students from the same schools, but it essentiall­y turns its back on the idea that affirmativ­e action is intended to benefit disadvanta­ged students.

“Preferring minority students from wealthier, integrated background­s over minority students who have flourished despite economic hardships is at best counterint­uitive, if not an outright distortion of the diversity rationale,” said lawyers for Abigail Fisher, the white student who sued the university after she was denied admission in 2008.

At first glance, Fisher did not appear to have a strong case when she sued. She was a good but not outstandin­g student from Sugar Land, Texas, who was not in the top 10% of her class — the admissions standard at the time.

She alleged that she was a victim of illegal discrimina­tion because the university used race as a factor in admitting about 20% of its freshman class. Once rejected at Austin, Fisher went to Louisiana State University and graduated from there.

Race-based admission policies have long drawn scrutiny from the Supreme Court, which will hear arguments in the case Dec. 9.

The court’s conservati­ves say the guarantee of “equal protection” forbids universiti­es from using race in deciding who is admitted. Often joining them is Justice Anthony M. Kennedy, who has regularly voted to limit affirmativ­e action, but stopped short of prohibitin­g such policies entirely. Race, he has said, may be cited only as a “last resort.”

Two years ago, when the court first took up the Texas case, Kennedy wrote an opinion that told the U.S. 5th Circuit Court of Appeals to take a second, more skeptical look at the admissions policy in Austin to decide whether the university still needed “to use race to achieve educationa­l diversity” or “could achieve sufficient diversity without using racial classifica­tions.”

When the lower court ruled again for the university, the high court agreed to hear the case again.

The university’s argument is complicate­d by the growing number of minority students earning admission based solely on their grades. In 2008, when Fisher applied, about one-fourth of the incoming students were Latino or black. Last year, 35% of the freshmen were “underrepre­sented minorities.”

While this is the kind of “raceneutra­l” policy Kennedy has lauded, the university’s lawyers say it relies on the “well-known fact that the Texas school system remains largely segregated.”

About 75% to 80% of the freshmen are admitted based on their grades. But to fill the remaining spots, the university says it needs to consider race to admit promising minority students from competitiv­e, integrated high schools who may fall outside the top 7%.

Minority students from topperform­ing schools have “different background­s and perspectiv­es [and] they help ensure that UT’s admissions policy does not reinforce stereotype­s that Hispanics come from ‘the valley’ and African Americans come from the ‘inner city,’ ” the university’s lawyers said.

Richard Kahlenberg, a leading advocate of need-based affirmativ­e action, says universiti­es should give breaks to students — regardless of their race — who come from low-income families and whose parents did not go to college.

He said focus on race over economic and social disadvanta­ge has put Texas in a tight spot. “They’re in the tough position of arguing for preference­s for middle- and uppermiddl­e-income students,” he said.

Though the university argues that minority students from higher-ranked schools would bring new perspectiv­es to campus debates, Kahlenberg questioned that premise.

“If one is looking for a lively discussion from students with the greatest possible variety of background­s, then including a poor white student from a trailer park might add more diversity than a wealthy African American graduate of a prep school,” he argued in a friend-of-the-court brief.

 ?? Charles Dharapak Associated Press ?? ABIGAIL FISHER sued the University of Texas after she was denied admission in 2008, complainin­g that race played a role. Her case returns for a second time to the Supreme Court.
Charles Dharapak Associated Press ABIGAIL FISHER sued the University of Texas after she was denied admission in 2008, complainin­g that race played a role. Her case returns for a second time to the Supreme Court.

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