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Wednesday, April 9, 2008
The plaintiff in the lawsuit is a white woman who applied in January for undergraduate admission at UT-Austin and was rejected despite having a 3.59 GPA, solid SAT scores, and a record of participation in extracurricular activities in high school. She is being represented by the Project on Fair Representation, a Washington-based organization that has been pushing the Bush administration to weigh in against UT-Austin's policy.
As discussed at length in Color and Money, Texas public universities were barred from considering race and ethnicity under a 1996 ruling by the U.S. Court of Appeals for the Fifth Circuit in the case Hopwood v. Texas. Black and Hispanic enrollments plunged, but then seemed--at least for the most part--to rebound after lawmakers passed a measure guaranteeing students in the top 10 percent of their high school class admission to the Texas public university of their choice.
In 2003, the Supreme Court essentially invalidated the Hopwood decision by upholding the use of race-conscious admissions in its ruling in Grutter v. Bollinger, involving the University of Michigan law school. But in that ruling, the Supreme Court also held that colleges must consider alternative ways of achieving diversity on campus before they resort to using affirmative-action preferences.
UT-Austin returned to using race-conscious admissions in 2005. The new lawsuit against it probably will hinge largely on the question of whether the alternatives to preferences used by the university in the wake of Hopwood produced sufficient levels of diversity.
"The top-10-percent plan has proven more successful in achieving diversity than did race-based affirmative action," Edward J. Blum, the director of the Project on Fair Representation, argued in a Chronicle of Higher Education interview. "Because of that, we believe the University of Texas is foreclosed from even considering a student's race."
As summarized here on The Chronicle of Higher Education blog and reportered here at greater length in Tulsa World, the campaign on behalf of the measure, the Oklahoma Civil Rights Initiative, filed a motion in the state Supreme Court on April 4 asking that it be withdrawn from consideration.
The campaign needed 138,970 valid signatures to get the measure on the ballot. Largely because Oklahoma law gives referendum advocates just a 90-day window for circulating such petitions, the advocates of the Oklahoma measure gathered just 141,184 signatures, leaving them little buffer room if significant numbers are challenged. Oklahoma's Secretary of State subsequently spotted large numbers of duplicate or otherwise suspicious signatures on the ballot measure, suggesting that it might be in trouble if someone combed through it carefully.
The motion filed by the campaign says: "Based of the number of signatures delivered to the Secretary of State, the validity rate for the signatures would need to be in excess of 90 percent, which is a statistical impossibility given historical validity rates and the limited time to verify the signatures."
The abandonment of the Oklahoma campaign is not expected to have a significant impact on efforts to put similar measures before voters in Arizona, Colorado, Missouri, and Nebraska.