I could see UT “losing” in the narrow sense that SCOTUS doesn’t affirm the Court of Appeals’ holding for UT on summary judgment. But then the appropriate next step is to send it back down to the District Court for a trial. I don’t see how, on the record before the court, they could award summary judgment to Fisher. Too many facts undeveloped or in dispute. That’s what Justice Kennedy was complaining about, and the only way to address it is through a trial. You can’t exactly fault UT for not having developed a more substantial factual record because it can’t really do that in the Court of Appeals, nor can it do that in briefing and oral argument before the Supreme Court–that’s just not the function.of those courts.
Totally random outsider thought, from a lawyer outside the US, who isn’t following the case, just the discussions on here:
It seems as if UT actually ISNT putting up much of a fight. They just have to appear to be fighting this, can’t just roll over and shrug because they would look as if they never cared about diversity and increasing URM enrolment in the first place. The 7%ers already provide them with sufficient diversity for their institutional needs, academic (critical mass of highly capable students), racial, geographic, SES. For the holistic admission process, they may just care about keeping it as opaque as possible, to fulfil whatever institutional need is paramount beyond those already taken care of. Very high on that list would be full pay parents and developmental/political admits of any race. If they can ratchet up white and AA enrolment, both of which are somewhat underrepresented compared to the demographic distribution in Texas IIRC, increase high SES AA enrolment to make graduation rates look better, and keep down Asian enrolment (massively over represented, and they have their critical mass of high scorers already in), without having to care about Hispanic enrolment (also massively underrepresented, but large absolute numbers, so critical mass),so much the better.
If they are told all they have to drop is considering race in admissions, they can point to the court and keep doing whatever they have been doing all along, ie look for full pay.
It may seem that way, based on UT’s efforts to NOT define critical mass, but, they really, really, don’t want to lose this case.
The primary goal of recruiting 25% of the class through holistic admissions is to IMPROVE the overall academic quality of incoming freshman. The (one of several) secondary objective is to insure some % of OOS students are admitted (for various reasons, not just for the OOS tuition). If UT loses the case (can’t consider race as part of the holistic process), then they will have to revert back to 10% (from the current 7%) auto-admits. That will reduce the number of students admitted via the holistic process. If UT want’s to keep the overall OOS % the same, then that means even fewer in-state students admitted via the holistic process.
By the way, Asian enrollment is 22% via auto-admit and 16% via holistic, but take into account Cardinal Fang’s yield numbers, above, which shows a lower yield rate for Asian students. It’s lower for holistic, but I don’t think we can say that was an objective for holistic admissions, or just an outcome based on other factors.
Neither side is putting up an effective argument.
Fisher’s response brief addresses going back to trial court::
“UT wishes to reopen the record to proffer additional evidence in the hopes of manufacturing a factual dispute. But the Fifth Circuit rejected this ploy, “find[ing] that there are no new issues of fact that need be resolved” and that UT failed to demonstrate “any identified need for additional discovery.” App. 13a. Simply put, UT’s proffer of additional evidence is neither timely nor probative. Six years after merits discovery closed, UT seeks to re-establish the general educational benefits of diversity (which are not in dispute) and somehow construct new rationales for its racial preferences. But the crux of strict scrutiny is to ensure that universities have contemporaneous, evidence-based reasons justifying their resort to racial preferences. Finding new justifications for racial preferences under a new record is foreclosed. Universities cannot be permitted to reflexively institute race preferences and then cast about post hoc for constitutional justifications and supporting evidence once they have been sued. There is no justification for allowing UT to reopen the record”
“If UT loses the case (can’t consider race as part of the holistic process), then they will have to revert back to 10% (from the current 7%) auto-admits.”
I would think this is independent of the case. The 2009 modified law which allows UT to only admit 75% of the top 10% and to also reduce from 10% to a lower percentage, was due to their freshman class approaching 90% of all auto admits and to give UT some leeway in admissions.
Right. And it said if use of race is overturned, they revert to top 10 percent. That law can be changed but has not been which means for one year, UT might be back to top 10 percent. The legislature only meets every other year in Texas. They met in 2015. If Fisher wins, it will probably be announced in late June. The legislature meets again in January 2017. Class of 2021 may be decided by 10 percent not 7-8. Class of 2018 based on whatever the new law says.
If Fisher wins, there is a provision to revert back to 10%? I wasn’t aware of that, is that in the case? Even if it does revert back to 10%, there is the 75% threshold, also. Even if those two items were changed, UT still has a holistic portion to their admissions, just now it would be a tiny sliver.
It is not part of the case. It is part of the law that allowed UT the ability to use the 75 percent threshold unlike the other schools in Texas. If it reverts to top 10 percent, UT will likely still need some type of exception due to the huge growth in the state. They would have no room for OOS students. I have not done the math, but I think they would have no room for holistic. I have to go to work but I will enjoy reading what you guys say today. I hope none of you are on my payroll!
So the case and the modified law are independent of each other, but the outcome of the case may affect the law in some way by the legislature.
Speaking only for myself, and not of course implying anything, I think you would find a high correlation between my business hours posting rate and the number of administrative tasks and/or terribly important conference calls scheduled in a given day.
But on the substance, I think I agree with you. I don’t see how UT’s policy survives the test in Fisher I, but I am not willing to say that just because UT’s policy goes down here that there are not other situations where the use of race can not be shown to be narrowly tailored.
I agree with this.
(As far as posting while at work–I think that is an individual decision for those who are self-employed or working in the private sector. I think the issue is different for those who are paid by the taxpayer. I know I would be upset if I knew state and local government officials in my area were spending time posting on message boards while on duty–not on break. Federal, same thing, just more remote.)
It is a little presumptuous to think the Harvard case will make it to the supreme court. It is frivolous and will be dumped on summary judgement at the trial court level.
Probably because they want to do whatever they want to do (whether or not involving race) in the non-auto-admit portion of admissions without being constrained by court decisions.
If by frivolous you are referring to the merits of the plaintiff’s allegation that they would have been admitted if not for their race…I would note that in the UT case Fisher’s claim that she would have been admitted if she was not white seems pretty weak, but that has not stopped the UT case from now making a second trip back to the Supreme Court. See the blurb from a Slate article below:
“Of the 841 students admitted under these criteria, 47 had worse AI/PAI scores (a combination of the holistic measure, grades, and test scores) than Fisher, and 42 of them were white. On the other end, UT rejected 168 black and Latino students with scores equal to or better than Fisher’s.”
Texas is in big trouble (in the short term, before they have time to change the law) if they have to go back to auto-admitting the top 10%. Their yield for auto-admits is 50%, but the yield would be higher for the 90-93 percentile, since the very top students have other, more attractive options not available to lesser students. They wouldn’t be able to accept any OOS students with their sweet sweet out of state $$$, let alone holistic students. In fact, I think they’d end up with a freshman class that was too big.
I think you are right Cardinal Fang. I think the legislature might have to call a special session to deal with it. There was a run made at fixing it in 2013 and it died. Not sure why. Surprised no one did anything in 2015.
Using 2008 data (before the new law that allowed UT-Austin to lower the % of auto admits), UT undergraduates were 4% OOS and 4.1% International. Last year, it was 7% OOS and 4% international.
So, if we use 2008 to predict OOS enrollment, if UT-Austin has to revert back to 10%, then we can expect a drop from the current 7% rate to around 4%.
And lets not forget that “even applications from students who are automatically admissible are subject to holistic review to determine the major to which the applicant will be admitted”. That’s why the college of engineering is still very competitive.
^^likely even lower than 4% since Texas is a growing state, and I have no doubt that it has added new high schools and many students over the past 7 years.
http://tea.texas.gov/acctres/enroll_index.html
In 2008 Texas had 273,606 12th graders in public schools. In 2014, it had 308,851.