"Critical mass" key to affirmative action case

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Associated Press

Posted on October 6, 2012 at 11:33 AM

Updated Saturday, Oct 6 at 11:33 AM

AUSTIN, Texas (AP) — Walking across the South Mall, or scanning the football stadium's 100,000 seats on game day, University of Texas admissions director Kedra Ishop sees how much has changed since the 1990s, when she was a black student at what was an inordinately white school.

This giant flagship campus — once so slow to integrate — is now awash in color, among the most diverse in the country if not the world. The student body, like Texas, is majority-minority.

At the dining hall, minority students no longer cluster together. Actually, it's more a high-end food court now, and many tables are racial mosaics — white, black, Hispanic, Asian.

So is this the "critical mass" of minority students that U.S. Supreme Court narrowly endorsed in 2003 as an educational goal important enough to allow colleges to factor the race of applicants into admissions decisions?

That question will be front and center Wednesday when a more conservative Supreme Court revisits affirmative action for the first time since that landmark case nine years ago involving the University of Michigan.

This time, it's Texas defending the use of race in admissions, fighting a discrimination lawsuit from Abigail Fisher, a rejected white applicant. As it happens, the court's decision will affect relatively few students at Texas, which admits most students through a system that doesn't factor in race. But a broad ruling rolling back affirmative action could be an earthquake at other campuses across the country that make more use of race, potentially changing the educational trajectories of millions of students.

For all the wrenching debates about opportunity and fairness the affirmative action debate evokes, the outcome will likely come down to how the current justices fill out the answer to questions they began to answer in 2003: What is critical mass, and how far can a university go to achieve it? Generally, it's the point where there's enough diversity on campus to provide a rich educational environment. But beyond that, it's a concept critics call maddeningly vague and supporters necessarily so. Is it enough for the student body to be diverse overall, or must all groups be well represented? What if there's diversity in the student body, but not in most individual classrooms?

Texas will swallow its pride and argue that for all its progress, it's still short of critical mass. Under state law, most UT students are admitted automatically based on their high school GPA, with race playing no role. But for the smaller remainder of its class where it enjoys more leeway, Texas argues it should be able to use race as a factor. The reason: Some groups, especially blacks, remain underrepresented compared to Texas' population. And minority students clump together academically, leaving most classes with no more than a single black or Hispanic voice.

But the university won't give a target number, something the court would likely call an unconstitutional quota.

"There's never been a discussion of 'this is the target, this is what it looks like, this is where we're trying to go,'" Ishop said. "We know what it doesn't look like. And we know without the ability to examine students in their completeness that we can get back there very quickly."

Such arguments sound mushy to UT's opponents, who call the school's goals for critical mass a quota in disguise. They say the university has gone too far using race in admissions, abusing the discretion the court granted colleges to define critical mass for themselves.

"It is a squishy concept that's being manipulated," said Terence Pell, president of the Center for Individual Rights, which argued against affirmative action in the Michigan case and has filed a brief against Texas in the current one. "It's just sort of diversity for its own sake," he added, "with no end and no limit."

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History isn't central to the legal issues in the affirmative action debate, but it's an issue at UT-Austin. The football team didn't integrate until 1970, and even as minority enrollment expanded, UT little resembled increasingly diverse Texas, leaving minority students feeling isolated.

"It was very seldom three or more were gathered," said Machree Gibson, who arrived on campus in 1978, earned two degrees and later became the first black female president of the Texas Exes, the university's powerful alumni group. "We used to joke, 'Three in a room, we're a gang.'"

Today, even a short drive through campus leaves Gibson amazed how things have changed.

But UT still doesn't look like Texas. Of its 52,000 students, 5 percent are black (compared to 12 percent of the state population). Hispanics are 18 percent at UT (38 percent statewide) and Asians 15 percent (4 percent statewide).

Greek life and off-campus housing for upperclassmen remain mostly segregated — the West Campus neighborhood is mostly white, Riverside more black and Hispanic, and the Far West neighborhood Asian, limiting interactions. Academically, many departments have few non-white faces. Senior Kristin Thompson says she's one of just two black female civil engineers in her class, despite aggressive recruiting. She's found her community outside class, but her academic experience has been lonely.

"At UT we talk about what starts here changes the world, but I think we're doing a disservice to students by not preparing them for a world that doesn't have these demographics," she said.

In the Michigan case nine years ago, psychologists, educators and most influentially the military flooded the court with briefs arguing a diverse learning environment helped prepare students, both whites and minorities, for jobs and citizenship. Many also argued it takes a critical mass of minorities

How many? There was no magic number. But enough for minorities not to feel isolated in the classroom, and non-minorities to realize minorities' views weren't one-size-fits-all.

Those arguments persuaded Justice Sandra Day O'Connor, the court's key swing vote. In her majority opinion in the 5-4 case, she gave Michigan and other universities leeway to define critical mass in terms of their own educational goals, and to use race as a plus-factor in admissions to get there (O'Connor has since been replaced by Justice Samuel Alito, a strong affirmative action skeptic).

In Texas, a 1996 federal appeals court ruling had prohibited UT from using race in admissions, and black enrollment had plummeted. A year later, the Texas legislature passed a "Top 10 percent" law, guaranteeing UT admission to any student at the top of his or her Texas high school.

The law was race-neutral, but it boosted the number of minorities — by some measures, close to current figures. To UT's opponents, that proves UT can reach ample diversity — even "critical mass" — without resorting to racial preferences.

But UT says the diversity produced by the 10-percent law was stilted. Ninety percent of smaller classes had one or zero blacks, and 43 percent no more than one Hispanic. A student survey found minorities felt isolated, and a majority of all students felt there weren't enough minorities for "the full benefits of diversity to occur."

The university wanted leeway to recruit more minorities with different interests, to ensure fields like geosciences, architecture and Thompson's civil engineering had a critical mass, not just the campus overall.

So for the relatively small portion of its class — currently about one-quarter — not admitted automatically by their high school performance, UT designed a system to mimic what the court had allowed in the Michigan case. In that second system UT emphasizes race is a small factor, among many "special circumstances" that may be considered. It's also not automatic, and could benefit any applicant, even a white one in some cases.

Both sides acknowledge the effect of race in UT's system is modest (Fisher contends race is decisive for just 33 additional minority enrollees per year). To UT, that shows race is used along the limited lines the court has allowed. To Fisher, it shows that UT doesn't need to use race at all.

On campus, critical mass evokes a range of responses. Jesse Hernandez, a senior who attended a virtually all-Hispanic high school in the Rio Grande Valley, says its benefits include generating a vibrant multi-cultural social life. Latino cultural groups, and fraternities and sororities, help minorities find a community at a huge school, but also benefit the broader student body by sharing their culture on campus.

Thompson, the civil engineering student, says she'll recognize critical mass "when there are less racial incidents on campus, when students feel like they can go anywhere on campus and feel welcome, can go anywhere and speak their mind and not feel like they're going to be chastised for it, ridiculed for it, looked at crazy," she said. She loves UT, but says it's not there yet.

"To me that's the end goal: a welcoming campus, not a quantity of students."

Senior Jordan Grenadier's experience has been different.

"I don't ever feel like I walk on campus or walk into a classroom and only see one particular type of people," said Grenadier, who leads the campus chapter of the group Young Conservatives of Texas. On West Mall, where student groups set up tables, "it's so diverse whenever you walk down there, it's almost hard to imagine the university saying 'that's not good enough.'"

The question isn't "whether or not (diversity) is important," she said. "It's, 'Is it justified? Can someone who is qualified to attend the university not get accepted because someone who is maybe not as qualified gets in because of racial preferences?'"

UT-Austin's president, Bill Powers, who agrees critical mass is the "central question" in the case, says UT isn't just saying "we'll know it when we see it." He says "analytics," like classroom diversity surveys, will show UT if it's successfully preparing students to live and work in a diverse world.

"Right now, African-Americans and Hispanics are underrepresented," Powers said in an interview in his library-like office on campus. "We'll reach a critical mass when you can (see it) both in the campus atmosphere and the milieu in individual classes. Not 100 percent, but where a sufficient number of individual classes bring this cross-cultural environment."

"It really is going to hinge on what lens the court looks at the campus through," said Gerald Torres, who says diversity is key to meaningful conversations about environmental justice in his law school courses. "Is it the lens of the classroom or is it the lens of the campus? If it's the lens of the campus, then (the court) is likely to say the percentage increase of students of color under the 10 percent plan is sufficient. If they look at the classroom, I think they'll say it's not."

Attorneys for Fisher, who sued Texas after she was denied admission to UT-Austin in 2008, contend that by even referencing the state's demographics in its critical mass goals, UT is acknowledging a quota. They also argue the Supreme Court never intended to make diversity in every classroom the benchmark for critical mass.

"As long as you have a critical mass in the school as a whole, you're going to bump into people in the dorms, in the all-night bull sessions," Pell said. "That's what's going to give you the benefits of diversity. Now Texas says that's not good enough, you have to have diversity in every corner of the university, in every classroom, every major."

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When she was a high school student, Ishop's parents — civil rights activists — hesitated to send her to UT. Now, as she travels the state as its chief recruiter, UT's historical legacy leaves some students skeptical the university will welcome them.

"There are still places and instances where that reticence still exists," she said. "It's not always just convincing the student of their appropriateness for a campus, but mom and dad and grandma."

While proud of what she now sees walking around campus, she rejects the notion that the lesson is UT can afford to be totally color-blind.

"We saw clearly what happened when we couldn't (use race) and it took seven years for those numbers to recover," Ishop said. If the campus has changed, "we didn't get here because we woke up one day, and boom, this is what the campus looked like. We got here because of very deliberate efforts."

But as the court scrutinizes those efforts, the justices will be asking, "How do you know know when there's enough?"

"It's not a matter of just saying 'more more more,'" Ishop said. "It's saying, 'We need the ability to make these decisions.' Because if we don't have that ability surely we'll regress again. And you won't see what you see on campus."

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Online: Briefs filed in the case: http://www.americanbar.org/publications/preview_home/11-345.html

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Follow Justin Pope at http://www.twitter.com/JustinPopeAP

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