NACME in the News

A Victory for Affirmative Admissions-Fisher v. UT at Austin

Monday, August 4, 2014


I emphasize in all of my writing and speeches that the solution to America’s competitiveness problem is to activate the hidden workforce of young men and women who have traditionally been underrepresented in STEM careers—African Americans, American Indians, and Latinos. Access to quality K-12 STEM education is key to preparing underrepresented minority young people for undergraduate education and beyond in STEM. Equally important is the aggressive recruitment, enrollment, education, retention, and graduation of increasing numbers of African American, American Indian, and Latino women and men by our nation’s engineering schools. NACME’s comprehensive portfolio of strategies across the continuum from middle school to workforce entry is designed to support this national imperative. This is why NACME has taken a stand against the anti-affirmative action movement in college admissions. We view this movement as yet another barrier being erected that will make it even more difficult to tap this source of talent.

On Tuesday, July 15, supporters of affirmative admissions policy in higher education were pleased when a three-judge panel of the United States Court of Appeals for the Fifth Circuit upheld the University of Texas at Austin’s consideration of race as one of the many factors in its admissions policy. Two key perspectives on the ongoing legal challenges to affirmative admissions policy in higher education help to level-set this issue.

First, from the legal opinion of Judge Patrick E. Higginbotham:

“We are persuaded that to deny U.T. Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter.”

Second, from the reaction to the ruling by William C. Powers Jr., the president of the University of Texas at Austin:

“This ruling ensures that our campus, our state and the entire nation will benefit from the exchange of ideas and thoughts that happens when students who are diverse in all regards come together in the classroom, at campus events and in all aspects of campus life.”

The Supreme Court held in Grutter v. Bollinger (2003) that student body diversity is a compelling governmental interest that can justify the use of race-conscious admissions in higher education. The University of Michigan Law School was permitted to use race as a factor in seeking a diverse student body, because the school deemed diversity essential to its educational objectives. In the present case, Fisher v. University of Texas at Austin, the plaintiff sought to undermine the Court’s significant and now well-established precedents, including its landmark 2003 decision in Grutter v. Bollinger.

The admissions policy at issue in Fisher has two components: Most University of Texas at Austin students are admitted under a state law (the “Top 10 Percent Plan”), which requires the institution to admit all students who rank in the top 10 percent of their high school class. For the remainder of the class, the university undertakes a holistic “whole-file” review of applications. This process allows the school to consider additional criteria, such as essays, leadership qualities, extracurricular activities, awards, work experience, community service, family responsibilities, socio-economic status, languages spoken in the home, and—as of 2005—race. After the University of Texas at Austin added the consideration of race into its individualized admissions policy, African American enrollment grew by more than 21 percent. It is this modest consideration of race alongside a host of other factors that was at issue in the Supreme Court.

Leading corporations filed amicus briefs laying out the business case for diversity in Grutter. These arguments proved influential with the Court. Today, the business case for diversity is even more settled than it was at the time of Grutter. In the Fisher case, it was critical to convey to the Supreme Court that corporate America is opposed to any dilution of the diversity efforts that were found lawful in Grutter.

My July 31, 2012 communication to the NACME Board of Directors on this matter cited 25 corporations as having agreed to sign on to an amicus brief supporting the actions of the University of Texas at Austin by the filing deadline of August 13, 2013. I counted eight NACME Board Companies among this initial group of 25. This corporate amicus brief was part of a broad coalition supporting the University of Texas at Austin’s race-conscious admissions policy, including numerous other colleges and universities, religious organizations, social science scholars, and leading civil rights organizations.

Alas, in 2013 the Supreme Court decided in a 7-to-1 ruling to vacate the decision by the appeals court and to force colleges to prove that they had tried every conceivable race-neutral admissions policy before introducing a limited consideration of race. The justices remanded the case and to the Fifth Circuit, requiring the lower court to re-examine the holistic, “whole-file” review policy in operation at the time at the University of Texas at Austin.

NACME’s voice has been heard in the various anti-affirmative action cases to come before the Supreme Court. An American Association for the Advancement of Science (AAAS)/NACME conference, organized in response to the Court’s decision in Grutter, resulted in a joint AAAS/NACME publication, Standing Our Ground, a guide for educators seeking diverse student bodies, while complying with the requirements of the Grutter decision. On January 15, 2008, 35 invited experts, comprising the academic, nonprofit, and business communities, gathered in Washington, D.C., to discuss the ongoing legal threats to diversity in higher education Science and Technology (S&T) programs at a roundtable organized by AAAS and NACME, and with support from the Alfred P. Sloan Foundation. Dr. John Brooks Slaughter, former president and CEO of NACME, wrote several op-ed articles and policy papers on the issue, and NACME joined the amicus briefs in the Grutter v. Bollinger and Fisher v. University of Texas at Austin.

As expected, the lawyers for Abigail N. Fisher have asked the full U.S. Supreme Court of Appeals for the Fifth Circuit to overturn the July 15, 2014 decision by a panel three of its judges in favor of the University of Texas at Austin. It is almost certain that the matter will once again be litigated before the Supreme Court.