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U.S. Supreme Court strikes down consideration of race in college admissions

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UT-Austin only Texas public university affected by Supreme Court's ending use of race in admissions

UT-Austin only Texas public university affected by Supreme Court's ending use of race in admissions” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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The U.S. Supreme Court ruled Thursday that the consideration of race in college admissions violates the U.S. Constitution, effectively ending the way that many universities across the country have tried to increase diversity on college campuses and reversing years of court precedent.

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In a 6-3 vote, the court found the admissions policies at Harvard University and the University of North Carolina at Chapel Hill violated the 14th Amendment's equal protection clause.

In the decision, Chief Justice John Roberts wrote for the majority that the admissions programs at both schools were “well intentioned and implemented in good faith.”

But, he said, “the Court has permitted race-based college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must — at some point — end,” adding that the admissions systems at both schools “fail each of these criteria.”

In Texas, the decision will largely impact the University of Texas at Austin, which was the only public university that considered race in undergraduate admissions, and multiple private universities, such as Rice University in Houston and Southern Methodist University in Dallas.

In a statement, Rice University said the university is “greatly disappointed that schools will no longer be allowed to consider race as a factor in admissions.”

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“But, as one justice observed today, ‘Deeming race irrelevant in law does not make it so in life,'” President Reginald DesRoches and Provost Amy Dittmar wrote in an email Thursday to the Rice community, quoting Justice Ketanji Brown Jackson. “For that reason, we are more resolute than ever that every day at Rice, we will pursue and celebrate the excellence that a richly diverse student body, filled with its manifold experiences, brings to our community of scholars.”

The UT-Austin did not respond to a request for comment.

The two lawsuits were brought by the group Students for Fair Admission, which is led by legal strategist Edward Blum, a crusader against college admissions processes that consider race in any way.

Blum is the same strategist who convinced Texan Abigail Fisher to file a lawsuit over a decade ago against UT-Austin, arguing the school unfairly discriminated against her by denying her admission while accepting students of color who she argued were less academically qualified. The court narrowly sided with UT-Austin at the time.

In one lawsuit, SFFA alleged the University of North Carolina at Chapel Hill violated the 14th Amendment's equal protection clause — which prohibits governmental entities from discriminating based on race — by considering race in admissions when it's not the only way for the school to achieve a diverse student body. The Supreme Court has previously ruled that race-conscious admissions are acceptable only if there is not a “race-neutral” alternative that is adequately achieving diversity.

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In the second case, SFFA alleged that Harvard University violated Title VI of the Civil Rights Act, which bars the federal government from providing money to private entities that discriminate based on race. Blum alleged that Asian American students are less likely to be accepted into the private university than similarly qualified students of other races.

In a statement, Lily Trieu, interim executive director of Asian Texans for Justice, said the group is disappointed in the court's decision.

“Eliminating affirmative action reinforces the model minority myth, which not only falsely implies that AAPIs (Asian American Pacific Islanders) as a whole do not face racial injustice, but that all AAPI communities' experiences are the same,” she said. Combined with Texas lawmakers' recent ban on diversity, equity and inclusion offices at state universities, she added, “the affirmative action ban will make it harder for Texas AAPIs to fully thrive and be represented.”

In a minority dissent, Justice Sonia Sotomayor wrote that the decision “rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits.”

“In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society,” she added.

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Roberts argued in the majority opinion that any consideration of race by universities must meet “strict scrutiny” and that they don't do a good job connecting their admissions processes and the goals they are pursuing.

The universities' main response to these criticisms is “trust us,” Roberts wrote. “They assert that universities are owed deference when using race to benefit some applicants but not others. While this Court has recognized a ‘tradition of giving a degree of deference to a university's academic decisions,' it has made clear that deference must exist ‘within constitutionally prescribed limits.'”

He also said the universities are not able to adequately prove that that a student's race is never considered a “negative” in the admissions process, which is required under the Equal Protection Clause.

Finally, Roberts said the schools' use of race did not have a “logical end point,” citing a 2003 Supreme Court ruling that upheld the use of race in admissions but said the court expected the practice would be unnecessary in 25 years. The justices said the ruling does not apply to military academies, citing “potentially distinct interests.”

But Roberts did note that nothing in the court's ruling “should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But … universities may not simply establish through application essays or other means the regime we hold unlawful today.”

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Emily Berman, a constitutional law expert at the University of Houston Law Center, said that means universities can consider race in the context of an individual applicant's experience with race.

“What you can't do is say, because this student is Black and therefore adds to the diversity of the class, that makes them a more desirable candidate than someone who is not,” she said.

Stella Flores, a higher education and public policy expert at UT-Austin, said the ruling would “decimate” the pool of students of color, particularly in areas like graduate school, science, technology, engineering and medical fields.

With the Texas Legislature's passage this year of a bill banning diversity, equity and inclusion offices at state public universities, “we already dug our own hole, and this is going to make the hole deeper,” she said. “We're actually the second-most-diverse state in the nation, and we're majority Latino. So we're going to have to get really creative in educating our population and providing more resources.”

A long legal history

The American public has debated whether universities should consider a student's race when deciding to admit them ever since affirmative action was introduced after the Civil Rights Movement to correct racial imbalances in education and the workforce born out of a segregated society. Since then, the nation's highest court has weighed in periodically on the legality of the policy and narrowed its scope but has allowed it to stand for nearly 60 years.

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In the past, the Supreme Court has chipped away at particular admissions policies but ultimately has repeatedly ruled that universities can consider race in admissions if they meet certain legal tests. For example, universities must ensure that considering race is an educational benefit to the broader student body and that there isn't another way to achieve diversity that doesn't consider race.

The first major challenge came in the 1970s, when a white student who was denied admission to the University of California's medical school twice challenged the school's policy to set aside a certain number of seats for students of color.

The Supreme Court banned the use of racial quotas in admissions in that case, but it also ruled that universities could consider race as one of many factors in a college application, including students' GPA, standardized test scores, personal essays, letters of recommendation and extracurricular activities.

Yet experts say the perception that universities still use racial quotas or decide to admit some students solely based on their race has persisted. Legal challenges have, too.

In 1996, opponents of race-conscious admissions saw their first legal victory — this time, in Texas.

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Cheryl Hopwood, a white woman, sued UT-Austin after she was denied admission to the university's law school, arguing the university was using a segregated application system for students based on race that violated the equal protection clause of the 14th Amendment. The district court judge said that admissions policy needed to go but still allowed for the university to consider race in admissions in other ways. Hopwood, along with three white men who joined the lawsuit, appealed the decision to the 5th U.S. Circuit Court of Appeals, which sided with the students. The Supreme Court rejected a request to hear the case, which meant that state universities in the 5th Circuit's jurisdiction could not consider race in college admissions.

A few years later, the Texas Legislature created a new plan to mitigate some of the predicted impacts of the end of affirmative action in college admissions. Lawmakers created what's known as The Top 10% Plan, which automatically admits Texas high school students who graduate in the top 10% of their class to the state's public universities.

The rule was designed to promote diversity at the state's top universities by pulling in students from high schools across the state. Texas public schools are largely segregated, so the thinking was that recruiting students from schools with varying racial and ethnic compositions would help build diversity on college campuses. Over time, lawmakers created a carve-out policy for UT-Austin. Because the school gets so many applicants, it is required to accept only high school students in the top 6% of their graduating classes.

The ban on affirmative action in college admissions in Texas didn't last long. In 2003, the Supreme Court ruled in the case Grutter v. Bollinger that the University of Michigan could consider race in its law school admissions, nullifying the 5th Circuit's decision and allowing UT-Austin to reintroduce race-conscious admissions in some cases. Ultimately, UT-Austin became the only public university in Texas to consider race in undergraduate admissions. The University of Houston Law Center also considers race in its admissions. In a statement, University of Houston spokesperson Chris Stipes confirmed the school would stop considering race in admissions given the ruling.

In 2008, UT-Austin again found itself at the center of a legal challenge to race-based admissions when Fisher sued the university after she was denied admission, arguing she was unfairly discriminated against because of her race.

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Currently, UT-Austin admits 75% of its class through The Top 10% Plan and the other 25% through a holistic process that considers multiple factors, including race. Fisher argued that The Texas Top 10% Plan was doing a good job helping the university achieve diversity and race should not be considered when UT-Austin admits the remaining 25%.

Ultimately, the court narrowly sided with UT-Austin, finding that The Top 10% Plan's ability to diversify the student body was limited. But the justices did say that the school should continuously review its processes to ensure that the school is not using race beyond the strict ways set by previous court rulings, including using it only when there is a compelling educational benefit to creating a diverse student body.

The Supreme Court's rulings Thursday come at a pivotal moment in the history of how college campuses consider race and diversity. Across the country, conservative politicians and policymakers have started to push back against the growth of diversity, equity and inclusion offices on campuses, offices that were created to ensure students from underrepresented backgrounds — including but not limited to race — feel welcome.

This year, Texas became the second state in the country to ban such offices, training and programs. Experts worry that the ban on those efforts, combined with the end of race-conscious admissions, could cement the impression that students of color are not welcome in the state's higher education institutions and walk back decades of efforts to build more diverse campuses.

Texas lawmakers respond

In the hours after the decision, Texas lawmakers on both sides of the political aisle weighed in on the court's ruling. The Texas Black Legislative Caucus and Mexican American Legislative Caucus released statements condemning the decision.

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“We acknowledge the history of our country and this decision presumes no historical barriers have been in place for the advancement of all Americans. We have a responsibility to affirmatively include those historically excluded,” said Rep. Victoria Neave Criado, D-Dallas, who chairs the Mexican American Legislative Caucus. “MALC will continue to fight for our growing Latino communities, the highest share of our state's population and the 49.3% of Texans under the age of 18 who are Latino, to have access to higher education.”

Meanwhile, Rep. Carl Tepper, R-Lubbock, filed a bill that would ban using “an applicant's race, color, or any other protected characteristic under applicable state or federal law as a factor in making admissions decision,” as well as in government hiring in the state. The legislation appears largely symbolic, as Gov. Greg Abbott has added only property taxes to the topics lawmakers can pass bills on during the second special session that began this week.

What's next

Broadly, education policy and admissions experts across the state and country are concerned that eliminating race-conscious admissions could have larger impacts on the already slow progress many universities have made to diversify their student bodies. If schools cannot consider race in admissions and they aren't allowed to create offices or programs that help students from underrepresented groups succeed, some also worry about the long-term impacts on graduation rates for students of color who might not get the support they need or even enroll in the first place.

During this year's regular legislative session, in anticipation that the Supreme Court could end race-conscious college admissions this summer, Texas lawmakers passed a bill to help UT-Austin prepare for that outcome.

The bill eliminated part of the state education code that said that if a court ends race-based admissions, the cap on the percentage of students accepted through The Top 10% Plan must be lifted. Without the cap, UT-Austin would see a large influx of students and wouldn't be able to accept any students outside those who graduate in the top 10% of their high school classes, including out-of-state students or student athletes. By removing that piece of the education code, UT-Austin was allowed to keep its current method of accepting students in place, regardless of the Supreme Court's decision on race-based admissions.

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While some think top 10% plans could be a model for other states to spur diversity in their college campuses, some higher education policy experts also believe percentage plans like The Top 10% Plan could be the next focus of debate in Texas' college admissions.

Ever since its inception, The Top 10% Plan has faced fierce opposition from some students and parents in middle- to upper-class suburban high schools, where they argue it's harder to graduate in the top 10%. In the past, Gov. Greg Abbott and some state lawmakers have signaled a willingness to adjust the plan to give schools like UT-Austin more latitude to select their freshman classes.

Flores, the UT-Austin higher education expert, said the future of college admissions for underrepresented students now depends on the courage of higher education leaders.

“They're really going to have to lead with character and integrity,” she said. “Leaders are the ones that are going to provide the pipeline of who we are as a nation.”

Disclosure: Rice University, Southern Methodist University, the University of Texas at Austin and the University of Houston have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/06/29/supreme-court-affirmative-action-ruling-texas/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

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