"Critical mass" key to affirmative action case

Saturday - 10/6/2012, 12:12pm EDT

By JUSTIN POPE
AP Education Writer

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).