Jim Locher is a graduating Texas high school senior who finished just outside the top ten percent of his class.  Although his top college choice was the University of Texas at Austin, he wasn’t admitted.  Soon thereafter, Locher, who is white, became quite upset when he learned that, although faring better academically in high school, other applicants with a minority background were admitted.  Believing that he was discriminated against, Locher contemplates a lawsuit against UT.  Can UT legally consider race as part of its admissions process?

Good question!  This exact issue was argued before the U.S. Supreme Court on October 10, 2012 (Supreme Court Argument Transcript).  Currently, UT automatically admits nearly ¾ of its incoming freshman class (approximately 7,100 students) as those students graduated in the top 8% of their high school class.  For the remaining spots, race is one of the factors taken into account as part of the admissions process.

Because the 8% Rule (formerly the 10% Rule) has produced significant diversity (ironically, because Texas high schools tend to be either all white or all minority, more than 8 out of 10 Latino and African American students were automatically admitted), proponents of the change maintain that racial preferences for the remaining spots is unnecessary and discriminatory.  UT argues that the 8% Rule does not create a critical mass of racial groups and that affirmative action is needed as too many of its classrooms contain only token minority representation.

When deciding the case, the Supremes will have four basic options – they can find that:

  1. Race should not be considered in the admissions process;
  2. UT’s program is constitutional;
  3. So long as UT is achieving substantial diversity through the 8% Rule, that race should not be considered; or
  4. They will simply “punt” the issue and maintain that the plaintiff lacks standing to sue.

A ruling is expected in the first part of 2013 and will obviously have far reaching consequences for all schools, as any school, whether private or public, which receives federal funds may not discriminate on the basis of race.