Big Beat

How many minority students at a university are enough? That was the question facing the U.S. Supreme Court last month during oral arguments in the affirmative-action case Fisher v. University of Texas.

When Abigail Fisher, a young white woman from Sugar Land, failed to get into UT-Austin in 2008, she sued the university for her $100 application fee, saying the school denied her entry because of her race. Fisher did not finish high school in the top 10 percent of her class, and UT says she wouldn’t have been admitted regardless of her race.

UT and many other public universities base their admission policies on the landmark 2003 case Grutter v. Bollinger, in which the Supreme Court held that the University of Michigan Law School’s interest in reaching a “critical mass” of minority students was constitutional because it was only a limited factor in the admission process. The school argued that such a critical mass is an important component of the learning environment for all students.

But what is critical mass, and has UT reached it?

A critical mass of minorities, as described in the Grutter decision, would “ensure that these minority students do not feel isolated or like spokespersons for their race; … provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and … challenge all students to think critically and reexamine stereotypes.”

Here is how UT’s admission policy is designed to create such a critical mass: First, the school admits top-ten-percent graduates from each high school in Texas, up to 75 percent of admissions. While the percentage plan helps ensure a baseline of minority admissions, Gregory Garre, representing UT before the court, argued that the minorities who are admitted to UT still tend to come from racially segregated, and often economically disadvantaged, schools.

UT then considers a variety of factors—including race—in filling the remaining spots. The latitude to consider race is important, Garre argued, because a minority student who doesn’t come from a low-income background is “precisely the kind of candidate that’s going to come on campus, help to break down racial barriers, work across racial lines [and] dispel stereotypes.”

After the Grutter decision, UT conducted a study of its minority students to discern whether they felt isolated. According to the study, they did. That’s not surprising at a university that, as recently as last month, was dealing with predominantly white fraternity and sorority members dressing up as Mexican stereotypes at parties, and where, last semester, the student newspaper The Daily Texan printed a cartoon containing an African-American racial slur.

The issues UT students are grappling with are issues their parents and grandparents have yet to reconcile. Affirmative action was created during the civil rights era as a Band-Aid for the institutionalized urban poverty
and structural inequalities that have always existed in this country. As long as those remain in place, there will be a need for affirmative action. It’s not a numerical change that needs to happen, it’s a sea change.

Fisher’s lawyer Bert Rein argued that “critical mass” must be defined, along with the point at which we can say a university has achieved it. As it stands, he said, UT has too much leeway to continue affirmative action admissions indefinitely. But UT can’t define critical mass as, say, a percentage of the student body, because the court decided in Grutter that doing so would create an unconstitutional quota system. It’s a catch-22 for the entire concept of critical mass that Rein said is sure to be its downfall, whether in this case or another in the future. Fisher’s lawyers are asking the court to not only find that UT’s top 10 percent rule doesn’t satisfy Grutter—they’re asking the court to overturn Grutter entirely.

The court isn’t expected to make its decision until early next year. With Justice Elena Kagan recused because of a conflict—she was involved in the case years ago in a lower court—the Supreme Court’s conservative justices have an outsized influence on the outcome. The court could destroy affirmative action, or it could seriously injure it. Look at UT today, though, and you can see why an admission policy aimed at achieving critical mass is as important as ever.

The race between Democrat-turned-Republican state Rep. J.M. Lozano and former state Rep. Yvonne Gonzalez Toureilles in House District 43 should make for an interesting case study of whether the Democrats have lost their stronghold in South Texas.

The pair are running in a district that looks quite different than it did when Lozano first got elected in 2010.

Until the recent redistricting, Kleberg County, where both Lozano and Gonzalez live, shared a district with the very Democratic Willacy and Cameron counties in the Rio Grande Valley (along with much-smaller Jim Hogg, Brooks and Kenedy counties.) Those southern counties were sliced off and Kleberg is now paired with three somewhat conservative, rural counties surrounding Corpus Christi—a shift that led the freshman Lozano to abruptly change parties in March.

The counties that make up the “new” District 43—Bee, Jim Wells, Kleberg and San Patricio— generally vote for Republicans at the top of the ballot and lean Democratic down-ballot.

PHOTO SOURCE: facebook.com/YvonneGonzalezToureillesForHD43

But this election, Republicans are pouring tons of funds into the district while Dems are arguing that Hispanic Republicans can’t win in South Texas. The Republican honchos have gone all-in for Lozano. Both Governor Rick Perry and Attorney General Greg Abbott have endorsed and stumped for Lozano. Ditto for former political rival, Will Vaden, who finished third in the May primary.

With Hispanics set to become the majority in this state, Republicans need a Hispanic poster child in the Texas Legislature and it’s clear from the $860,000 in fundraising reported from Lozano’s camp since the first of the year that the Texas GOP has made Lozano a special project. After all, most of the other Hispanic Republicans elected in 2010 have dropped out or are in tough re-election battles of their own.

Former state Rep. Aaron Peña, from Hidalgo County, who switched parties after winning in 2010, chose not to run again after a San Antonio court pushed him into a neighboring, heavily-Democratic district.

State Rep. Jose Aliseda of Beeville chose not to seek re-election because he got paired with Lozano in the same district. He’s running for Bee County DA instead. State Rep. Raul Torres of Corpus Christi saw his Nueces County district disappear in the Republican-led redistricting process, so he decided to challenge state Sen. Chuy Hinojosa, a Democrat, in a long-shot bid for that Senate seat.

And then there are Republicans Connie Scott in HD-34 (Corpus Christi), Dee Margo in HD-78 (El Paso) and John Garza in HD-117 (San Antonio) trying to defend the seats they won in 2010, all of which had previously been held by Hispanic Democrats.

“I think that Republicans have taken a look at these seats and made calculated decisions that J.M. is their South Texas/Latino firewall,” says South Texas Democratic consultant Roger Garza. “Dee Margo and Connie Scott are in the races of their lives and could lose for the second time to their opponents. John Garza is locked in a tight race in San Antonio where the margin could be decided by just a few hundred votes. And since Republicans have invested so much in J.M.—already getting him out of a contested primary and runoff—they can’t make their initial investment turn out to be bad money.”

While the extra dollars translate to more commercial time on local airwaves, Garza reiterates that it’s still a Dem’s game on the lower part of the ballot. “You see a huge Republican drop off when you get to the State Supreme Court races,” Garza says. “1300 more people voted for Texas Supreme Court Dems than voted for Obama in the last election.”

And though Lozano has far outspent Garza (she’s raised $176,000 since July compared to Lozano’s $445,000 in roughly that same period), Garza claims that she has more people on the ground, walking neighborhoods.

Both sides, Republican and Democrat, have made clear that this race has symbolic importance. For the GOP, it’s about whether the conservative juggernaut can make inroads with Latinos and maintain the party’s grip on power. For Democrats, it’s about whether they can continue to appeal to the Hispanic community (or communities) on the usual terms. A loss would be demoralizing for Democrats, who count on Hispanic demographic growth to power them back into competitive statewide races. Reading too much into this one House race is probably a mistake. But listen closely to how the losing side tries to spin things in the days and weeks to come. It may become a recurring excuse.