MALDEF


Message from the President & General Counsel

Nine years ago, when the Supreme Court upheld the limited use of race in university admissions, the majority opinion in Grutter v. Bollinger indicated that the decision was expected to stand for 25 years. At that time, MALDEF filed an amicus brief on behalf of a number of national Latino organizations in Grutter arguing why affirmative action was appropriate and legal with respect to Latino students, and the Court outcome was a welcome reprieve from the ongoing national assault on affirmative action.

Yet, far less than 25 years later, a changed Supreme Court has agreed to hear and consider a challenge to a University of Texas admissions program that includes limited consideration of race and that was developed in specific response to the Grutter precedent. As you see below, MALDEF has again stepped up to ensure that the Court has the perspective and arguments of leading Latino organizations in support of the University of Texas program.

The Latino community has a central role to play in this renewed debate about affirmative action. In this time of intense targeting of the Latino community through anti-immigrant laws and pejorative rhetoric, it is surely no coincidence that this premature challenge to the continued viability of the Grutter precedent comes out of Texas, our second largest state with one of the highest proportions of Latino residents, including even higher percentages of Latino schoolchildren, in the country. The continued assault on equal opportunity policies in higher education has much to do with unwarranted fear of the growth of the Latino community. In 2010, the very same year that the infamous SB 1070 was enacted and that the attack on Mexican American studies was codified into state law, the state of Arizona also enacted a ballot measure, modeled on California’s 1996 anti-affirmative action Proposition 209, to bar consideration of race in Arizona higher education.

Of course, this pattern goes back many years. The affirmative action program challenged nearly four decades ago in Regents of University of California v. Bakke -- the first challenge to higher education affirmative action to be determined by the Supreme Court -- benefited more Latino applicants than applicants from any other group. While too many leaders in our country still see these issues in biracial terms, affirmative action and the related issues of equal educational opportunity pertain as much to the Latino community, particularly as the Census-recognized largest minority group in the country, as to any other group.

We in the Latino community have a central role to play in debates, in and out of court, about affirmative action in higher education. At MALDEF, we look forward to continuing our vigorous efforts on the side of equal educational opportunity.

Sincerely Yours,


Thomas A. Saenz
President and General Counsel
MALDEF


CONTINUING ITS LONGSTANDING SUPPORT OF AFFIRMATIVE ACTION, MALDEF FILES AMICUS IN SUPREME COURT TO PROTECT DIVERSITY IN U.S. UNIVERSITIES

As part of its longstanding commitment to defend the right to equal educational opportunity, MALDEF filed an amicus brief earlier this week in the U.S. Supreme Court on behalf of 21 national Latino civil rights groups and organizations in the critical affirmative action case, Fisher v. University of Texas. The amicus brief staunchly defends the University of Texas at Austin’s limited use of race in making certain admissions decisions.

"Our contemporary national experience with extreme policy enactments firmly rooted in bias and discrimination toward the Latino community only confirms the rectitude of our longstanding recognition that our nation’s future depends on securing equal educational opportunity that extends all the way through higher education," stated MALDEF President and General Counsel Thomas A. Saenz. "We know that, until our society removes all of the discriminatory barriers to such equal opportunity, we must engage in affirmative action through the limited consideration of race in university admissions."

The Fisher case originated in 2008 when Abigail Fisher claimed that she was denied admission to UT Austin because she is Anglo. Recognizing the importance of the Fisher case, not only as the first challenge to a university’s limited use of race following the Supreme Court’s 2003 University of Michigan decision in Grutter v. Bollinger, but also as a pernicious effort to persuade the Court to overrule Grutter altogether, MALDEF attempted to intervene on behalf of Latino high school and college students. Although the court denied intervention, MALDEF continued to represent the students as amici (non-parties providing input to the court) and to defend the admissions plan as the case made its way through the court system.

The U.S. District Court ruled in favor of the University and against Fisher in 2009, but Fisher appealed to the Fifth Circuit Court of Appeals. There, with our co-counsel at O’Melveny and Myers LLP, MALDEF filed an amicus brief again on behalf of students. The Fifth Circuit upheld the lower court decision.

The admissions policy in effect at the time Fisher filed the court challenge was developed in response to a key Texas law revision and two court cases that were pivotal in addressing the use of race as a factor in admissions. First, in 1996, the Fifth Circuit decision in Hopwood v. Texas (a case in which MALDEF played a critical role representing amici in defending the use of race by UT’s law school) essentially ended the consideration of race as a factor in admissions at UT Austin. In response, MALDEF helped draft the Top Ten Percent law, enacted by the Texas Legislature, which grants automatic admission to any public university in the state to any student who graduates in the top ten percent of their high school class. This law helped reopen the doors of Texas institutions to thousands of qualified Latinos and other minority students.

In 2003, the U.S. Supreme Court held in Grutter v. Bollinger that universities have a compelling interest in the benefits of a diverse student body and may pursue diversity through limited consideration of race. MALDEF also filed an amicus brief in Grutter, supporting the University of Michigan Law School's consideration of race in admissions.

Following Grutter, and its implicit overruling of Hopwood, UT Austin engaged in a thorough review of its admissions policy and determined that its students were not acquiring the benefits of a fully diverse student body. The admissions policy in question in Fisher is a blended approach to admissions, complementing the Top Ten Percent Plan with a holistic admissions review process for limited numbers of applicants in which race is considered as only one of seventeen separate factors.

Following Grutter, and its implicit overruling of Hopwood, UT Austin engaged in a thorough review of its admissions policy and determined that its students were not acquiring the benefits of a fully diverse student body. The admissions policy in question in Fisher is a blended approach to admissions, complementing the Top Ten Percent Plan with a holistic admissions review process for limited numbers of applicants in which race is considered as only one of seventeen separate factors.

As the U.S. Supreme Court prepares to hear the case in October, MALDEF, together with its co-counsel at O'Melveny and Myers, continues to fight for the fundamental right to an equal educational opportunity in the United States through the filing of the current amicus brief in support of the UT admissions plan. MALDEF and the other national Latino organizations stress in the brief to the Supreme Court that diversity in the classroom also complements and improves a student's readiness to enter an increasingly diverse and global workforce, and fosters the ideal of civic engagement in a heterogeneous society. The brief also notes that while the diversity rationale strongly supports the UT admissions program, it also must be evaluated in the context of a growing Latino population in Texas, with young people who continue to face markedly unequal educational opportunity in elementary and secondary education. Throughout its history, of course, MALDEF has been a leader in the ongoing fight to secure greater equity in the Texas public school system.

"With the Latino population growing both in Texas and nationally, it is critical both for students and greater society that doors to higher education remain visibly open to highly qualified Latino students,” urged David Hinojosa, MALDEF counsel of record and Southwest Regional Counsel. "The Court must not turn the clock back on progress made and yet to be made."

Ultimately, MALDEF argues that UT employs a constitutional process that should be affirmed by the U.S. Supreme Court on the same grounds the Court decided to allow such a process under Grutter v. Bollinger.


Founded in 1968, MALDEF is the nation's leading Latino legal civil rights organization. Often described as the "law firm of the Latino community," MALDEF promotes social change through advocacy, communications, community education, and litigation in the areas of education, employment, immigrant rights, and political access. For more information on MALDEF, please visit: www.maldef.org.

Copyright 2009 MALDEF — Mexican American Legal Defense and Educational Fund