Racially segregated by law for its first 70 years — the school did not admit the first African-American until 1950 — the University of Texas at Austin has tried several means of increasing minority enrollment. A state law now guarantees admission to students in roughly the top 10 percent of the graduating class of any Texas high school.
To fill the remaining slots, about one fifth of each entering class, the school considers several other factors, including an applicant's race.
Fisher and affirmative action's opponents argue that the Top Ten plan has increased minority enrollment and created a racially diverse campus. In order to justify considering an applicant's race, they argue, the university should have a concrete goal, because racial classifications must pass a rigid legal test.
"UT has never been clear about precisely why it needs to use racial preferences," says Bert Rein, a Washington, DC lawyer representing the opponents.
While the university has asserted that it wants to achieve diversity within racial groups on campus, "the use of race as a factor in admissions can distinguish students only as to one trait — race," Rein says, adding that the school "has failed to show that race-neutral means could not achieve this supposed interest."
In response Washington, D.C., lawyer Gregory Garre, representing the university, says it seeks "minority students — and students of all races — from different backgrounds, with different experiences, and different perspectives. That is the essence of diversity."