"The sad truth is that the Top Ten Percent Plan gains diversity from a fundamental weakness in the Texas secondary education system. The de facto segregation of schools in Texas enables the Top Ten Percent Plan to increase minorities in the mix, while ignoring contributions to diversity beyond race," Higginbotham wrote. "While the Top Ten Percent Plan boosts minority enrollment by skimming from the tops of Texas high schools, it does so against this backdrop of increasing resegregation in Texas public schools, where over half of Hispanic students and 40% of black students attend a school with 90%-100% minority enrollment."
Notably, UT Austin states that its admissions policy also benefits white students who attend those majority-minority schools but don't end up in the top 10% of their classes. The majority opinion states that the holistic review process, while adding minority students, largely benefited white students. According to the opinion, only 21% of the Hispanic students and 26% of black students were admitted through the holistic review process, compared to 35% of the incoming white students.
Critics of affirmative action have frequently described the approach as "racial quotas," but Higginbotham throws this accusation back at Fisher and her attorneys, stating that their insistence that Top Ten Percent is all that is needed to achieve diversity would affirm a de facto quota. "Fisher’s claim can proceed only if Texas must accept this weakness of the Top Ten Percent Plan and live with its inability to look beyond class rank and focus upon individuals," HiggInbotham wrote. "Perversely, to do so would put in place a quota system pretextually race neutral."
The opinion provoked a spirited dissent from Judge Emilio Garza, who wrote that the university "has not defined its diversity goal in any meaningful way" and so "it is altogether impossible to determine whether its use of racial classifications is narrowly tailored." Garza added that the majority’s sustained focus on the Top Ten Percent Law is misplaced," arguing that the law "matters only insofar as it causes the University to admit a large number of minority students separate and apart from the holistic review process."
This decision won't be the last word on the case, which could end up at the Supreme Court once again. The high court's refusal to kill affirmative action for good in 2013 should not be read as an endorsement. The Supreme Court could easily write an opinion outlining criteria for the use of race in college admissions so narrowly as to make it impossible. In the past, the court under Chief Justice John Roberts has displayed unanimity in reaching narrow decisions on controversial cases, only to reach broad rulings when the issue comes before the justices again. That could very well be their intent with affirmative action.