Hopwood 2.0

If two young women have their way, the University of Texas may soon rival the University of Michigan as the nation's top breeding ground for affirmative action jurisprudence.

Abigail Fisher and her co-plaintiff, Rachel Michalewicz, are the faces of a movement to overturn a landmark 2003 U.S. Supreme Court opinion allowing the use of race in the admissions process at the Michigan Law School. Their chosen target is UT, which denied them both admission in 2008. They believe that happened because they're white.

On Aug. 3, the federal 5th Circuit Court of Appeals will hear oral arguments in their lawsuit, which has attracted widespread attention from the legal community, including an amicus brief from the Obama administration in support of the university’s position. The case threatens to reinvigorate an ideological skirmish that reached its peak in the late 1990s.

Fisher and Michalewicz’s challenge to the use of race is the first in an undergraduate setting since the high court handed down Grutter v. Bollinger and its companion case, Gratz v. Bollinger — a pair of decisions that articulated how schools could use race-based affirmative action to select their incoming classes. The current plaintiffs lost in district court, in a 2009 ruling that affirmed the university’s policies were within constitutional bounds set forth in Grutter, which allows schools to use race as factor in the holistic consideration of candidates. (Explore annotated versions of both sides' appellate briefs and the district court's opinion here.)

For the conservative activists bankrolling the case, Texas’ history with affirmative action makes it the ideal incubator for a challenge to standing precedent. That’s because the courts already have shot down race-based admissions in a now-famous 1996 case, Hopwood v. Texas, which forced state universities to search for race-neutral methods of increasing diversity on campus. That will allow Fisher and Michalewicz to argue that the race-based admissions used in their case were unnecessary given the proven success of race-neutral alternatives.

In Hopwood, an applicant to the University of Texas law school sued the state for its race-based admissions policies. The 5th Circuit ruled against UT — making the case the first successful challenge to a university’s affirmative action policy. In a controversial move that followed, then-Attorney General Dan Morales extended the court’s decision to all state schools. The Legislature reacted by passing the top 10 percent rule in 1997, which guaranteed admission to all state-funded universities for students who graduate in the top 10 percent of their high school class.

Combined with a program of socioeconomic-based affirmative action, the top 10 percent rule increased the number of minority admissions because of the demographic patterns of Texas school districts, where minority students are often clustered in the same schools. It received praise for promoting diversity in a racially neutral manner. But after Grutter, UT reworked its admissions policies to consider race as a factor for the students it accepted outside of the portion admitted under the rule.

That’s where Fisher and Michalewicz come in. Fisher, a native of Sugar Land, was in the top 12 percent of her class. Michalewicz — whom UT ranked in the upper 10.14 percent of her class — just missed the top 10 percent mark at her high school in Buda. Because race was a factor in UT’s review of their applications, they allege, the university violated their rights under the 14th Amendment, which requires a state to treat its citizens equally under the law — something their brief says is not happening because the policy "benefits African-American and Hispanic students and consequently works to the detriment of White and Asian-American students.” Specifically, they believe that under Grutter, the use of race as a factor in admissions is constitutional only as a “last resort.” Because of UT’s success in the past in promoting diversity without using race, it should be prohibited from doing so in its current policies.

The D.C.-based Project for Fair Representation handpicked Fisher and Michalewicz as plaintiffs and is paying their attorneys. Former Houstonian and anti-affirmative-action crusader Edward Blum founded the group in 2005 specifically to challenge what he regards as the unconstitutional use of race in public policy. Since then, the Project has brought four different lawsuits across the country, including the recent Supreme Court Voting Rights Act case out of Austin, Northwest Austin Municipal v. Holder. 

Blum, who also serves as a fellow at the conservative American Enterprise Institute, says he first became interested in what he calls “race jurisprudence” in 1992, when he lost a congressional race in Houston’s 18th district (the seat Sheila Jackson Lee currently holds) and successfully brought a suit arguing that the district was unfairly gerrymandered based on race. After first coming into contact with Fisher through a family connection, he launched a website called UTnotfair.org to find more high schools students like her. Michalewicz was one of them.

Texas is a “very unique candidate for a challenge” to Grutter, Blum says, because Hopwood forced the state to consider alternatives to race-based affirmative action. A caveat in the Grutter opinion, Fisher and Michalewicz argue, means that — because of the racial diversity the university was able to achieve under the top 10 percent plan — it can no longer legally use race as a factor in its admissions process. Richard Kahlenberg, a senior fellow at the Century Foundation who writes on affirmative action policies, explains that while the case “was for the most part supportive of using race in admissions,” there was a provision that said, “[I]f you can get racial diversity using non-racial means, then it would be illegal to use race per se.”

Patti Ohlendorf, UT’s vice president of legal affairs, says the university’s undergraduate admission policy is “completely appropriate” legally. That’s because the top 10 percent rule did not achieve the “full diversity that the university believes it should,” she says, which necessitated adding race as a factor in admissions. The university, represented by Texas Solicitor General James Ho, points to what it believes are Fisher and Michalewicz’s true motives in its appellate brief: The 5th Circuit “is a little more than a way station for the Plaintiffs’ real ambitions, which fall within the exclusive province of the U.S. Supreme Court.” UT’s brief also takes issue with their characterization of the Grutter holding, saying that it doesn't require a university to exhaust "every conceivable race-neutral alternative” — and nowhere does it say the use of race can only be as a “last resort” to achieve diversity.

Burt Rein, a partner at the Washington, D.C., law firm representing Fisher and Michalewicz, says the goal of promoting diversity isn’t on trial. "It's not an easy issue. I don't think anybody questions that it is desirable to have diversity and subject people to different points of view in an active academic environment,” he says. “The question is how do we get from here to there."

Kahlenberg, who supports socioeconomic rather than race-based affirmative action, calls the choice of Texas as the legal battleground “a shrewd decision” by opponents of affirmative action — especially those with an eye on taking their appeal to nation’s highest court. If the high court rules against UT, Kahlenberg says, it could leave universities vulnerable to litigation charging they had not sufficiently explored alternatives to race-based affirmative action, effectively opening up an issue the 2003 decisions supposedly settled.

“This case is tailor-made for Justice Kennedy and conservatives on the Supreme Court to undercut affirmative action without technically overruling Grutter," he says.  

Rein downplays his clients’ Supreme Court aspirations. “You can’t make the Supreme Court take any case,” he says. But here’s the high court calculus that has supporters of affirmative action nervous about the case’s prospects: Sandra Day O’Connor was the swing vote in the 5-4 Grutter decision. Now, since the more conservative Samuel Alito has replaced O’Connor, the swing vote will likely go to Anthony Kennedy — who joined the dissent in Grutter, opposing race-based admissions.

The court, in its current makeup, has taken up the issue of affirmative action in education since Grutter. Two 2008 cases addressed the use of race by school districts to assign students to public schools. Parents Involved v. Seattle School District No. 1, decided along with Meredith v. Jefferson County Board of Education, was another 5-4 standoff that had Kennedy and Clarence Thomas concurring with a plurality opinion. The Parents Involved court took a critical approach to the use of race in a K-12 setting and struck down the districts' policies. However, in that case, Blum’s group filed an amicus brief specifically asking the court to overturn Grutter — and it declined. Chief Justice John Roberts, writing the plurality opinion, reiterated that while the case did not apply to public high schools, it still stood as good law governing university admissions.

Blum denied access to Fisher and Michalewicz for this article, saying they weren’t out to become “national figures in their cause.” Both now enrolled in other universities, he says, “they are just two outstanding students who want to live garden variety lives and feel UT's treatment of them and hundreds of other students was unfair and unlawful.”