Guest post by Michael A. Olivas
Monday was hog heaven for me, as I teach both higher education law and immigration law courses, and had important litigation and legislation grist for both areas of study. Of course, immigration reform is moving its drunkard’s reel through Congress, and it is a full time business to keep track of all the good and bad amendments and to know the difference. In addition, the Supreme Court decided three important college law cases: two where faculty lost ground in employment discrimination, and Fisher v. University of Texas. Both sides have accurately called it a win for their interests (myself included), and it is clear that the court is continuing to choke off the oxygen to affirmative action, to the small extent it still exists. But Fisher is important for a number of reasons, including ones I had not even known were in play.
First, because Fisher did not challenge the constitutionality of the UT Percentage Plan, I did not expect it to be in such play, and was particularly disappointed when Justice Ginsburg—the only Justice who sussed out the narrow tailoring that did exist, and the only one who voted correctly—also missed the bona fides of the plan. She said, caustically: “Petitioner urges that Texas’ Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. . . Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage.” Yikes.
I certainly agree with her that any corrective for diversity purposes must use diversity criteria. But as one of the study group of 5-6 lawyers and faculty who advised and drafted for Rep. Irma Rangel in enacting the Plan, I can say that it is not the blindingly-obvious existence of residential segregation that we used to engineer the Plan and it has not been racial isolation in Texas that made the Plan so successful that UT begged the State to minimize its effect. We chose the percentage measure because rank in class has always been a quality consideration, and because we wanted to minimize the near-magical properties ascribed to a Saturday morning test such as the SAT or the ACT, that itself acted as a substantial barrier to minority admissions. I say this having noted that I served as a College Board trustee, and so know the good, bad, and ugly of standardized exams.
More to the point, we wanted to improve the reach of college outreach, which was limited to a small, elite universe. We wanted to use the psycho-social spinoffs that were sure to occur—so the white kid in Midland could see his efforts would pay off, to show the Chicana in Mission that if she tried hard she could get into the college of her choice, and to urge high school counselors and minority parents in Navasota to get more of their kids to aspire to apply to UT, TAMU, UNT, Houston, and other excellent schools. We were successful beyond our wildest hopes. These criteria had to fit into a racialized universe to work, but that is not the same as these being racial proxies or criteria. We wanted a single measure that produced a frogpond effect, and a simple and easily-apprehended metric that everyone would understand. We did not anticipate that (mostly) white parents and schools administrators would relocate, obfuscate data, or do away with rank in class so that everyone was a Lake Wobegon achiever, or that the Abigail Fishers of the world would sue. UT A is disproportionately, by many means, comprised of Abigail Fishers. After all, last year, over half the UT enrollments through the Percentage Plan (now shrunk) were white—in a state with a school population that is not nearly so white. TAMU had to drop its unwarranted alumni privilege points, which every year produced more white admits than ever enrolled as minorities on that campus. When TAMU tried to extend its reach to a top 20%, they were sued by conservative groups who thought that whites would lose ground under such an arrangement.
I make no apologies for the Plan or other efforts on behalf of the disadvantaged in Texas. And I suspect that as their numbers shrink, whites will become converts to minority issues and the logic of trying to correct for underrepresentation. Mark my words, in English y en Espanol.
Michael A. Olivas is the William B. Bates Distinguished Chair of Law at the University of Houston Law Center, director of the university’s Institute for Higher Education Law and Governance, and the author of Suing Alma Mater: Higher Education and the Courts, published by Johns Hopkins University Press.