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Texplainer: What Happens if UT Loses the Fisher Case?

The University of Texas at Austin's use of race as a factor in some admissions decisions is being challenged before the U.S. Supreme Court this week. What will happen to the admissions process if UT loses the case?

A look at the sun setting over the University of Texas at Austin Tower in 2011.


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Hey, Texplainer: If the Fisher v. University of Texas at Austin case is decided in the plaintiff's favor, what will happen to UT?

On Wednesday, the U.S. Supreme Court is scheduled to hear a major case that challenges the University of Texas at Austin’s use of race as a factor in some admissions decisions — or, as the university argues in its legal brief, a “factor of a factor of a factor of a factor.”

UT only uses race as one element in its decision-making process, part of a holistic review of an applicant who fails to qualify automatically under the state law that guarantees admission to students who graduate in the top 10 percent of their high school class.

One such student was Abigail Fisher, a white woman and the plaintiff in the case that the country’s highest court is about to hear. Ironically, should Fisher win her case and prevent the university — as well as others around the country — from factoring race into their decisions, the immediate effect may be to prevent any Texas students similarly below the top 10 percent of their class from attending the state’s most elite public university.

Texas created the top 10 percent law in 1997 as a creative way to ensure geographic and ethnic diversity in the state’s top public universities without using affirmative action, which was facing a legal challenge at the time.

In 2009, with the number of students entering UT under the top 10 percent provision overwhelming the school, lawmakers passed Senate Bill 175. It allows UT to cap the number of Texas students automatically admitted at 75 percent of the in-state class. The measure effectively reduced automatic admission at UT to students in the top 8 percent of their high school classes.

As they made adjustments to allow UT to conduct a holistic review process, lawmakers prepared for a possible challenge like the one the university is currently facing.

A provision in the law says that should a court or board of regents bar race from being a factor in admissions decisions, the 75 percent cap can no longer be applied. UT would revert to automatically admitting as many students in the top 10 percent as possible, which would mean the entire incoming class.

UT officials are not particularly eager to lose the discretion they currently have when it comes to admissions. “To select a class based on a single criteria is not the best way to select a class,” said Kedra Ishop, UT’s vice provost and director of admissions. “There are other things about students that are important to the student body on this campus that require us to look beyond a single criteria.”

There is some evidence, though, that sticking to just the top 10 percent could make for a more diverse student body. According to the university's report to the Legislature on the implementation of SB 175, the group of students admitted under the top 10 percent provisions appears to be more diverse than those admitted after a holistic review that includes race as a potential factor.

A decision from the U.S. Supreme Court in the Fisher v. University of Texas at Austin case is not expected until next spring. Texas lawmakers begin their session in January, which could give them time to revisit the provisions of SB 175 in light of the impending court decision.

Bottom line: Unless legislators tweak the current law that allows UT to cap its automatic top 10 percent admissions, a loss in the Fisher case could make it virtually impossible for students who are not in the top 10 percent of their high school graduating class to gain admission to the university.

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