Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

Obama administration again backs University of Texas in affirmative action case

Siding again with the University of Texas in an affirmative action fight that already went all the way to the Supreme Court, the Obama administration told a federal appeals court Friday that the school has provided "ample support" for the conclusion that it still needed to boost diversity in 2004 and 2008, dates key to the long-running litigation.

In a brief filed with the U.S. Court of Appeals for the 5th Circuit (and posted here), the Justice Department urges the appeals court not to return the case to the trial court and instead to uphold the university's program based on evidence already on file in the case. The department also argues that the courts should conduct an independent review of the university's conclusion that it had not attained sufficient diversity to end its affirmative action program, but to so while giving "due regard" to the school's expertise.

"Although a reviewing court should ensure that a university’s conclusions are well-supported by concrete evidence, the court should also give due regard to the university’s application of its expertise in evaluating that evidence. Because that evaluation entails the application of educational judgment, the court cannot simply assess the evidence for itself in the first instance, as it would in a situation involving the remediation of past discrimination," said the brief, submitted by the acting head of Justice's Civil Rights Division, Jocelyn Samuels.

The brief argues that African American enrollments of about 5% were not sufficient to ensure the presence of black students in small classes. However, it goes on to make a more aggressive argument that enrollment of about 17% for Hispanics was not sufficient diversity because it wasn't close enough to the number of Latinos in the general Texas population.

"In view of the significant – and growing – Hispanic proportion of the State’s population, as well as the trend toward less classroom diversity, the University concluded that it could not provide the degree of crossracial interactions necessary to prepare its students for leadership in Texas," the Justice Department brief says. "To be sure, as a minority group’s representation in the student body increases, it will be harder for the University to demonstrate that it has not yet attained the educational benefits of diversity. But the University relied on the underrepresentation of Hispanics as only one data point, along with such other evidence as a decrease in classroom diversity. When taken together and viewed in light of the University’s mission of training the next generation of Texas leaders, all of this evidence provides ample support for the University’s determination that it had not yet attained sufficient diversity."

The 5th Circuit previously rejected denied undergraduate applicant Abigail Fisher's claims that U.T.'s affirmative action efforts amounted to unconstitutional racial discrimination. However, the Supreme Court ruled, 7-1, earlier this year that the lower courts hadn't adequately examined whether the programs were "narrowly tailored" and whether less intrusive alternatives may exist to achieve the diversity the school is seeking.

The appeals court is set to hear oral arguments in the case again later this month at a special session in Austin.