So why does UT do any additional affirmative action as it fills up the portion of the entering class not admitted through the 10% program? You've already got a lot of diversity, so why do you need more? The additional affirmative action is precisely to bring in privileged black and Hispanic students, that is, the black and Hispanic students who did not attend racially isolated schools. If white students get too many of the top 10% spots at those schools, then the 10% program does not bring enough of these minority students into UT.
The university says... that the highest-ranked students at a disadvantaged school have lower SAT scores than some in the middle of the pack at a more competitive suburban high school. UT's affirmative-action program aims to open doors for minority applicants from middle-class or professional families. Such students can "help dispel stereotypical assumptions…which actually may be reinforced" by minorities admitted only because of the top-10% plan, UT said in its brief.Actually, under the Court's case law, the diversity that is considered a compelling interest (which is what the state needs to defend race discrimination) is not about boosting the underprivileged. In Grutter v. Bollinger, the majority approved of the idea of assembling a class that includes "a 'critical mass' of minority students," which does not mean "racial balancing, which is patently unconstitutional" but is "defined by reference to the educational benefits that diversity is designed to produce."
Justice Samuel Alito seized on that point. "I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before," he said.
These benefits are substantial. As the District Court emphasized, the Law School’s admissions policy promotes “cross-racial understanding,” helps to break down racial stereotypes, and “enables [students] to better understand persons of different races.”...These benefits are “important and laudable,” because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the students have “the greatest possible variety of backgrounds.” ...If it's about breaking down stereotypes, the 10% approach creates a problem: The minority students in the classroom tend to come from the racially isolated schools, the less privileged Texans. So, it seems, the additional affirmative action is needed to get a more varied group of minority students, in which case, the point is to bring in privileged minority students, because these are the students who — in Grutter terms — might provide the classroom benefit of teaching all the students that minority students don't have "some characteristic minority viewpoint."
The Law School does not premise its need for critical mass on “any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.”... To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.
Obviously, there were dissenting opinions in Grutter. For example, Justice Scalia scoffed at that idea of the compelling interest: The lesson taught by classroom diversity is "essentially the same lesson taught to (or rather learned by, for it cannot be 'taught' in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens."
I'm not taking a position on whether UT's admissions policy is good or whether it's constitutional. (Do not assume you know what I think. You don't.) All I am saying is that if Grutter is to be applied (and not limited or overruled), an affirmative action program that's all about boosting the most privileged minority students actually makes sense.
Did Justice Alito not see that (or was he mainly expressing disapproval)? Here's his quote (along with Justice Kennedy's), put in context, beginning at page 43 of the PDF transcript:
JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before. The top 10 percent plan admits lots of African Americans -- lots of Hispanics and a fair number of African Americans. But you say, well, it's -- it's faulty, because it doesn't admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas. Now, that's your argument? If you have - you have an applicant whose parents are -- let's say they're -- one of them is a partner in your law firm in Texas, another one is a part -- is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have - parents both have graduate degrees. They deserve a leg-up against, let's say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?
[GREGORY G. GARRE, counsel for the University of Texas]: No, Your Honor. And let me - let me answer the question. First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.
JUSTICE ALITO: Well, how that question be no, because being an African American or being a Hispanic is a plus factor.
MR. GARRE: Because, Your Honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.
JUSTICE KENNEDY: So what you're saying is that what counts is race above all.
MR. GARRE: No, Your Honor, what counts is different experiences -
JUSTICE KENNEDY: Well, that's the necessary -- that's the necessary response to Justice Alito's question.
MR. GARRE: Well, Your Honor, what we want is different experiences that are going to -- that are going to come on campus -
JUSTICE KENNEDY: You want underprivileged of a certain race and privileged of a certain race. So that's race.
MR. GARRE: No, Your Honors, it's -- it's not race. It's just the opposite. I mean, in the LUAC decision, for example, this Court said that failing to take into account differences among members of the same race does a disservice -
JUSTICE KENNEDY: But the reason you're reaching for the privileged is so that members of that race who are privileged can be representative, and that's race. I just -
MR. GARRE: It's -- it's members racial group, Your Honor, bringing different experiences. And to say that -- if you took group, if you had an admissions process that to admit from a -- people from a particular background or perspective, you would want people from different perspectives.
CHIEF JUSTICE ROBERTS: Counsel -
MR. GARRE: And that's -- that's the interests that we're discussing here. It's the interests that the Harvard plan specifically adopts and lays out -