By Kate McGee, The Texas Tribune
June 29, 2023
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.
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.
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.
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 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.
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.
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 or 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.
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 other 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. They 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’s Law Center also considers race in its admissions.
In 2008, UT-Austin again found itself at the center of another 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.
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.
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.
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.
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/.
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