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Sietmann-Rodriguez Brief

February 19th, 2013

Table of Cited Authorities:

   – Regents of the University of California v. Bakke (Oyez.org)

   – Grutter v. Bollinger (Oyez.org)

   – Gratz v. Bollinger (Oyez.org)

   – Parents Involved in Community Schools v. Seattle School District (Oyez.org)

   – University of Texas Admissions Website (http://bealonghorn.utexas.edu/transfer/admission/factors)

   – Texas Scholarships (http://www.texasscholarships.org/welcome/facts.html)

   – The Oyez Project (Oyez.org)

   – Brief for Respondents No. 11-345

   – Brief for Petitioner No. 11-345

Statement of Argument:

   The University of Texas’ admissions requirements are constitutional under the fourteenth amendment. The school only uses race as an auxiliary factor in deciding admissions, not as a primary factor or even one which gives students admissions points, therefore the school is using race to achieve a level of experience and education for their students that otherwise cannot be found. Under Grutter v. Bollinger, a school is allowed to consider the race of their applicants through a “tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body”. Under University of California v. Bakke, “quota systems” are unconstitutional, but race may be a factor in admissions because schools have a  “compelling interest in encouraging diversity in its student body”.



   The Fourteenth Amendment allows the University of Texas to use an applicant’s race as a factor in admissions. The amendment restricts admissions based on race or gender, however it allows selective schools to consider race while giving more weight to other factors. This restricts schools from reserving spots for certain races or denying a student admission solely due to their race. The University of Texas, in this case, chose applicants based on their academic abilities as well as extracurricular factors while only using race as a final factor to ensure the diversity of the school. There are a few Supreme Court rulings that affect this case directly.  First is the case of Grutter v. Bollinger.  In the decision delivered by Justice Sandra Day O’Connor, the use of race as a factor in graduate programs is allowed since “‘the Law School’s race- conscious admissions program does not unduly harm nonminority applicants’”.  By allowing these race factors, the University of Michigan Law School, as well as other graduate programs, would benefit from being surrounded by a population that is diverse in nature.  Another case is that of Gratz v. Bollinger.  This case decided that a university’s undergraduate admission process could not guarantee a seat to a student based heavily on their race.  This is because an incoming freshman class, by nature, is going to be diverse due to the volume of students.

   Under both Grutter v. Bollinger and Gratz v. Bollinger, the Supreme Court decided admissions processes that were narrowly tailored, such as that of the University of Texas, upheld the equal protection clause of the fourteenth amendment. In Grutter, Michigan Law School denied admission to Barbara Grutter, a female with a 3.8 grade point average and a LSAT score of 161. Grutter alleged that the respondents had discriminated against her on the basis of race in violation of her Fourteenth Amendment rights and that she was rejected because the Law School uses race as a “predominant” factor, giving minority applicants a significantly greater chance of admission than students with similar credentials from majority groups.  Justice Sandra Day O’Connor  decided that schools had a “compelling interest” to view an applicant’s race because diversity at a school has unique educational benefits”. This can allow the school to have the “educational benefits that flow from a diverse student body”.  Admissions processes which aimed to attain a “critical mass” for educational purposes were legal under the Equal protection Clause. In Gratz, The University of Michigan used a 150-point scale to rank applicants, with 100 points needed to guarantee admission. The University gave underrepresented ethnic groups an automatic 20-point bonus on this scale, almost guaranteeing minority admission. The school’s admission process was deemed unfair and Chief Justice Rehnquist decided an applicant’s race is a “plus” that can be used in admissions as long as the school considers “all of the qualities” the student has, and their ability to add to the “unique setting of higher education”.

   The University of Texas had a strict ‘ten percent rule’.  This rule is in place to insure that the most elite students are attending the university.  The ten percent  rule “limits the diversity that can be achieved within racial groups” but not the racial groups themselves.  After the decision of Hopwood v. Texas, the use of race in an application was used as a smaller factor in the holistic review process.  “Even with the top 10% law and [the University of Texas]’s race-neutral diversity initiatives, African-American and Hispanic enrollment at best  remained stagnant  compared to the pre-Hopwood period. In Fall 2002, only 3.4% of the freshman class was African-American and 14.3% was Hispanic, below 1996 levels.  The numbers were 4.5% and 16.9%, respectively, in 2004” (10).  The representation of minorities at the University of Texas actually fell in comparison to the rising minority populations in the state.  This goes to prove that minorities were still accepted in the school and it only limited the range of students within a minority race.

   If a student is not within the top 10% of their class, their application can still be reviewed for admission.  Such applications include ones where the student is in the “bottom 90% of [their] class, … [if the] school does not rank students”, or if the student is home schooled (12).  According to the University of Texas, when looking at an application, the university considers the student’s “substantial coursework from a challenging academic institution, evidence of relevant coursework and experiences related to your field of study, (and specific) required courses for specific areas of study evidence of a positive academic trend”.  Justice Breyer made a statement about the review process at the university.  He said that “[each application’s review process] is individualized.  It is time limited.  It was adopted after the consideration of race-neutral means”.  Each applicant receives individual consideration, and race did not become the predominant factor.  Ms. Fisher applied to the university for the fall of 2008 for the school of Business Administration or Liberal Arts.  At the time of her application, she had a SAT score of 1180 (on the old 1600 scale compared to the present day 2400 scale).  She also had a and a cumulative 3.59 GPA. According to the Texas Scholarships, “the average SAT score for freshmen entering The University of Texas at Austin in 2005 was 1242. The national average was 1028.”  Ms. Fisher’s SAT score was clearly below the approximate average for the university.  Also, Ms. Fisher was not in the top ten percent of her graduating class.  Since she was not in the top ten percent and not automatically accepted, her application was submitted for the holistic review process.  This process is complex and rigorous to ensure that each application is reviewed on a level playing field with equal consideration to each one. The applications are first divided into their respective “school or major for which admission is sought”.  Then, within each school or major, the applications are put onto a matrix to start the review process.  This matrix has both an AI and a PAI score.  “An applicant’s PAI [Personal Achievement Index] score is based on two essays and a Personal Achievement Score (PAS)” (13).  Each essay is read and then given a score of one to six.  When they are reviewed, each essay is reviewed by a “trained reader” and is done so without revealing neither the name nor the race of the applicant.  The AI and the PAI are then combined make a score for each application.  Once each application is a part of the matrix is then divided by a “stair-step” line (12).  This separates those who will be admitted to the university and those who will not.  Each section is an “all or nothing proposition”; a person’s application will either be accepted or denied bases on which section of the matrix they are in.  At this stage in the review process, the location of an applicant on the matrix is not determined by their name and therefore do not contain race. As stated in the petitioner’s counsel, “[The university of Texas uses] a matrix where you don’t know who’s who. Because once they’ve made a score, you become a number. So [the University of Texas is] not doing what Michigan was doing in Grutter.”  Ms. Fisher had an AI score of 3.1 and a PAI score of less than 6.  Even if Ms. Fisher would have had a perfect score for the PAI of 6 points after processing the matrix, she would have been in a portion of the matrix would have been denied admission(15).  The overall holistic review process “exemplifies the type of plan this Court has allowed” under the ruling of Bakke in that race is only a “modest” factor in the admission process.  Again, this ensures that each application is looked at in its entirety, and not by one factor alone.  Also, the petitioner’s claim that race is “too modest” of a factor is “counter-intuitive” (20). This ensures, again, that race is a limited factor. In the 2007 case of Parents Involved in Community Schools v. Seattle School District, admission into high school was the main topic of the case.  Students applying for certain high school would be selected almost solely on their race, and not their merits. Since the school district was considering race as a primary factor, this admission process was struck down.  The race factor, in this case, was to separate students from one another, not to have an enriched learning environment due to a diverse population.  At the University of Texas, the race of an applicant is ‘a factor of a factor’ and hardly has any weight in the decision process.  In the opinions for this case, Justice Kennedy made sure to mention that “public schools may sometimes consider race to ensure equal educational opportunity”.  This kind of discrimination may not consider it when “demonstrable educational benefit from racial diversity”, which the Seattle School District could not prove.

   At the end of the day, it is the duty and responsibility of the Constitution to uphold the right and liberties of the American people. Late Senator Cowan of Pennslyvania once said that “laws were framed generally so as to operate upon all people” and that is exaclty what the University of Texas and the United States Supreme Court is doing.  These systems are treating each individual with the same integrity so that each receives individualized attention. Therefore, the regulations that are currently in place by the University of Texas and the laws handed down through the cases listed above are functioning properly and do not need to be altered, adjusted or amended in any way.

Conclusion:  When this case was first presented, the court found in favor of the University “holding that [the University of Texas] has a compelling interest in attaining a diverse student body and the educational benefits flowing from  such diversity, and that UT’s individualized and holistic review process is narrowly tailored to further that interest”.  The case was then appealed to the Fifth Circuit, where after careful consideration, they decided in favor of the University of Texas and affirmed the previous ruling that the university’s admissions policy is lawful when  “Judge Garza … recognized that the court’s opinion was faithful to  Grutter”.  “Like the district court, the court of appeals found that ‘it would be difficult for [the university] to construct an admissions policy that more closely resembles the policy approved by the Supreme Court in Grutter.’”; and the court understood that “it as ‘a given’ that [the University of Texas’s] policy ‘is subject to strict scrutiny with its requirement of narrow tailoring.’”   During the hearing for Fisher v. University of Texas,  et al., Justice Breyer noted that “we (the Court) have a rule that if two courts say it, we’re very reluctant on something connected with facts, to overturn it(the decision)” (18).  Based on the facts presented above and the legal reasoning of the Justices, the Court should find in favor of the University of Texas and uphold affirmative action admissions by allowing the consideration of race in undergraduate admission decisions.