Affirmative Action Again Under Fire In Admissions

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On May 16, 2019, Students for Fair Admissions (SFFA), an anti-affirmative action group, filed yet another lawsuit against the University of Texas at Austin (the University). This is the third such suit SFFA has filed against the University. The new lawsuit alleges the University violates the Equal Rights Amendment of the Texas Constitution by considering race in the admissions process. A similar lawsuit between the parties was dismissed in April due to a lack of standing.

Top Ten Percent Plan

Texas passed a law in 1997 known as the “Top Ten Percent Plan” (TTPP) which requires public state universities to admit all applicants from Texas who rank in the top 10% of their high school graduating class. This law was modified in 2009 for the University to allow for automatic admission of 75% of the incoming freshman class, with the remaining 25% to be chosen based on admissions criteria. Currently, students in the top 6% of their graduating class are eligible for automatic admission at the University in this 75% group.

SFFA New Lawsuit Against University of Texas at Austin

SFFA’s newest lawsuit alleges the University’s consideration of race while filling the remaining 25% of spots at the University is discrimination, particularly against white and Asian applicants. Under the Texas Constitution, in order to use race as a factor in admissions, the University must have a policy that is narrowly tailored to serve a compelling governmental interest. SFFA claims that “student body diversity” is not a compelling interest of the University and that categorizing students into demographic groups is crude, inaccurate, and overly simplistic. Additionally, SFFA alleges racial preferences actually harm their intended beneficiaries. In support of this argument, SFFA’s petition cites United States Supreme Court Justice Thomas’s dissent  in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 241 (1995) where Justice Thomas declares that racial preferences “stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.” SFFA requests a permanent injunction to prohibit the University from considering race as a factor in the admissions process.

Fisher I and II

SFFA’s challenges to affirmative action hit the spotlight with the high-profile lawsuit, Fisher v. University of Texas, which reached the Supreme Court in 2016. In a 4-3 decision, the Court narrowly ruled in favor of the University and upheld the consideration of race in a holistic review of an applicant’s file. The Court stated their affirmance of the University’s admissions policy did not mean the University could rely on that same policy in the future without refining it and advised the University that it was obligated “to engage in constant deliberation and continued reflection regarding its admissions policies.”

Fisher challenged the use of race in admissions under the Equal Protection Clause of the 14th Amendment of the United States Constitution.  In SFFA’s lawsuit filed this year, SFFA takes a new approach by challenging the same practices under the Equal Rights Amendment of the Texas Constitution.

The lawsuit against the University is one of several pending across the country. SFFA has filed similar lawsuits challenging affirmative action at Harvard University and the University of North Carolina at Chapel Hill. A ruling is expected in the Harvard case this summer. Regardless of the ruling, an appeal is expected in the Harvard case.

Affirmative Action Today

The Supreme Court ruled in 2014 that states have the right to prohibit the use of race preferences in school admissions. As a result, eight states now have laws prohibiting race-based affirmative action at all public universities. These states include Arizona, California, Florida, Michigan, New Hampshire, Nebraska, Oklahoma, and Washington. It is expected that more states may follow.

The U.S. Department of Education under the Trump Administration has also supported a rollback of affirmative action and race-conscious admissions policies. In 2018, the U.S. Department of Education rescinded the Obama Administration’s guidelines that provided instructions for considering race in elementary, secondary, and postsecondary institutions.  Later, in 2019, the Trump Administration reached an agreement with Texas Tech University’s medical school where Texas Tech University agreed to stop considering race in its admissions process.

What This Means for Educational Institutions

It is likely that one or more of these cases could reach the Supreme Court in the next couple of terms, leaving the validity of race-conscious admissions in flux. This prospect is a cue to educational institutions to consider reviewing their policies regarding affirmative action and race-conscious decision making in admissions to ensure they comply with relevant federal and state laws.

Thank you to Husch Blackwell’s summer associate Jackie Coffman for contributing to this blog post.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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