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Sometime in the next few weeks, the U.S. Supreme Court is expected to rule on two cases challenging whether it is legal for public and private universities to consider a student’s race in college admissions.
The American public has debated the question ever since affirmative action was introduced after the Civil Rights movement to correct racial imbalances in education and the workforce that were 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.
This time, legal and education policy experts are preparing for the court’s conservative majority to possibly put an end to the use of race in college admissions, which would change how some universities select their students.
If that happens, it would largely impact Texas’ private institutions and its most selective public university: the University of Texas at Austin, which is the only public university in the state that still considers race in undergraduate admissions.
Education policy and admissions experts across the state and country are concerned that eliminating race-conscious admissions could have broader impacts on the already slow progress many universities have made to diversify their student bodies. In Texas, state lawmakers recently decided to dismantle offices on college campuses that try to make college campuses more diverse and welcoming to all types of underrepresented students. 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.
“The Supreme Court decision is almost the least of our worries and it’s still a huge worry,” said Stella Flores, a higher education and public policy expert at UT-Austin. “These attacks on DEI policies … are really going to destroy the culture of any form of attempts to provide more equity from kindergarten all the way to the workforce.”
As universities await the Supreme Court decision, here are a few things to know about what the end of race-conscious admissions in higher education could mean for Texas:
The cases before the Supreme Court
In the past, the Supreme Court has banned racial quota systems and said schools cannot admit students to correct systemic racism or give an advantage specifically to students of color. But the court has largely sided with universities and supporters who argue that considering race in admissions is a way to increase student diversity and provides educational benefits to all students. Opponents have argued that the practice is discriminatory and believe admissions should be based primarily on merit.
The two lawsuits before the Supreme Court were filed by the group Students for Fair Admissions. The group is led by lawyer Edward Blum, who recruited Texan Abigail Fisher to file a lawsuit against UT-Austin, alleging she was unfairly discriminated against when the school denied her admission in 2008 because she was white. Ultimately, the court narrowly ruled in favor of UT-Austin, finding the university had met legal scrutiny requiring that race considerations provide an educational benefit to students.
In one lawsuit, SFFA alleges 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 doesn’t need to do so 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 to achieve diversity.
In the second case, SFFA alleges 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 is alleging that Asian American students are less likely to be accepted into the private university than similarly qualified students of other races.
Most public universities in Texas don’t consider race
The vast majority of Texas public universities, including Texas A&M University, Texas Tech University and the University of Houston, do not consider race in their undergraduate admissions process.
In 1996, the U.S. Court of Appeals for the 5th Circuit ruled against using race in admissions, which banned universities in its jurisdiction, including Texas, from using affirmative action in college admissions for a few years. The Supreme Court took a different stance in 2003 when it ruled the University of Michigan could consider race in its law school admissions, nullifying the 5th Circuit’s earlier decision.
Despite the change, many schools in Texas, like A&M, decided to continue to ignore race in their admissions process.
At the time, A&M leaders pointed to a statewide admissions process that had been developed recently known as the Top 10% Plan, saying they could use it to build a diverse student population without the need to implement affirmative action policies.
Under the plan, Texas students who graduate in the top 10% of their high school class are automatically admitted to a public university. The thinking was that since Texas’ public high schools are still de facto segregated because people largely live in neighborhoods divided by race, pulling the top students from a wider selection of high schools across the state would be an effective way to create diverse student bodies at the state’s public universities.
Over time, A&M has grown by tens of thousands of students, with large gains in its Hispanic and Asian populations. But Black student enrollment has largely remained flat. Meanwhile, studies have shown the Top 10% Plan has not done enough to help A&M or UT-Austin better reflect the state’s diversity.
Unlike Texas’ public universities, many private schools in the state still consider race in admissions, including Rice University in Houston, where university leaders already pledged a commitment to continue their diversity efforts regardless of the Supreme Court’s decision.
“Our admissions office and general counsel are preparing for various outcomes,” Rice University leaders wrote in an open letter in March. “We will strive to do all we can, within the bounds of the law, to continue to recruit and retain a widely diverse student body. Rice’s student body, faculty and staff are a multicultural reflection of the world, and our goal every year is to enroll a diverse class of the most talented students as well as hire and retain faculty and staff from across the country and around the globe.”
Southern Methodist University in Dallas and Texas Christian University in Fort Worth also consider race in admissions. Notably, the largest private university in Texas, Baylor University, does not consider race in admissions.
The University of Houston’s Law Center is one of the only public graduate programs that currently considers race in admissions.
Schools that do consider race use it in limited ways
The first time the Supreme Court was asked to weigh in on affirmative action in college admissions was in the 1970s in a case known as Regents of the University of California v. Bakke. In that case, a white student who was denied admission to the university’s medical school twice challenged the school’s policy to set aside a certain number of seats for students of color.
The court banned the use of racial quotas in admissions but did say that universities could consider race as one of many factors in a college application, including students’ grade-point average, 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.
“It’s sort of a black box that not a lot of people understand,” said Liliana Garces, a legal and education policy expert at UT-Austin. “It is not this process of placing a thumb on the scale … It’s just sort of understanding the entirety of the circumstances.”
Admissions offices at some of the most selective schools often have to decide between highly qualified applicants, which means the smallest details can make a huge difference in their determinations. Factors they sometimes consider include whether the student lives in a state farther away from the school, whether they play an instrument or whether they want to major in a unique field.
“Little things can have a great deal of impact,” said James Murphy, deputy director of higher education policy at Education Reform Now, a national education nonprofit. “That does not mean that they’re giving some unfair preference to students of color.”
At UT-Austin, admissions officers consider race to admit only a portion of their freshmen. Today, 75% of each freshman class at the university are automatically admitted through the top 10% plan (However, due to the highly selective nature of their admissions, the state has allowed the university to only automatically accept students who graduate in the top 6% of their class.)
Most of the other 25% of students are admitted through a holistic review that considers race, along with a student’s grade point average, extracurriculars, personal essays and letters of recommendation.
During this year’s legislative session, Texas lawmakers adjusted the state’s education code to allow UT-Austin to continue admitting students using this method in anticipation that the Supreme Court might overturn race-conscious admissions policies. Without that change, state law would’ve required UT-Austin to accept 100% of students that qualify for admission through the Top 10% Plan, which would’ve drastically increased enrollment and leave no room for the university to consider other students, such as out-of-state students or student athletes.
When states ban race-conscious admissions, enrollment drops among students of color
In 1996, California voters banned the use of race in admissions at its public universities. Since then, research shows the share of Black and Native American students at the state’s schools fell.
A 2020 analysis from Yale University found the decision deterred students of color from applying to University of California system schools. By the mid-2010s, the number of underrepresented students who were earning more than $100,000 in their early careers dropped by 3%, showing the ban on affirmative action enhanced socioeconomic inequalities.
Garces also studied the impact of bans on race-conscious admissions in graduate programs like law and medical schools. In one analysis, she found that bans on affirmative action in college admissions in Texas, California, Washington and Florida over time reduced the average proportion of graduate students of color across the natural sciences, engineering, social sciences, business, education and humanities by 12%. She also found that when individual schools stopped considering race in admissions, it made administrators feel as if they couldn’t discuss issues of race and racism in decisions about admissions, academic support and beyond.
“That ended up kind of muting and silencing your work in these areas and I know from research that it’s very important for that work to be intentional, in order to be able to support students’ experiences,” she said.
Those who oppose race-conscious admissions argue that there are other factors that universities can consider to draw a diverse student body, such as socioeconomic status. But according to an analysis by the Georgetown University Center on Education and the Workforce, that wouldn’t be enough. If highly selective schools cannot consider race, the center found, they would need to completely reform their admissions processes to generate the same level of diversity achieved when considering race. That would include implementing measures like eliminating legacy enrollment, which gives preference to students whose family members also attended the school. Ultimately, the center concluded, there “is no good substitution for the consideration of race.”
In Texas, public universities have largely banned legacy admissions. Some private schools, including SMU, Rice and TCU do consider legacy along with race.
Baylor, which does not consider race, does consider legacy in admissions. The fall 2022 freshman class was 64% white, 4% Black and 16% Hispanic. According to the university, 30% of the fall 2022 freshman class were related to a Baylor graduate.
Murphy said selective schools are going to feel renewed pressure to eliminate legacy admissions if the Supreme Court bans race-conscious admissions.
“Universities and colleges’ commitments to diversity are going to be truly tested. Not that getting rid of legacy will fix the problem — not even close — but because [the admissions process] is so competitive,” he said. “If they’re not getting rid of legacy preference, in my book, they’re essentially saying, ‘diversity is a nice idea to our university, but it is not an important practice.’”
Experts are worried about broader impacts
While many higher education experts are preparing for the Supreme Court’s conservative majority to end race-conscious admissions, some are hopeful that won’t be the case.
Leonard Baynes, the dean of UH’s Law Center, said the Supreme Court’s recent ruling to keep a portion of the Voting Rights Act intact in an Alabama redistricting case “suggests that this is not a slam dunk to end affirmative action as we know it.”
Other experts are less hopeful that race-conscious admissions will survive, pointing to justices’ skepticism about the need to consider race during oral arguments last fall.
If the Supreme Court does rule against race-conscious admissions, Baynes said it will be harder to achieve a diverse student body through other factors besides race. He believes it’s possible, but said it will take an intentional commitment to make it happen.
Some higher education policy experts worry about other unintended consequences. Admissions experts are concerned that if schools can no longer consider a student’s race, many students of color will be discouraged to apply to highly selective schools and will instead opt for less selective schools. Experts say historically Black colleges and universities could see an uptick in applications.
They also worry that universities, in an attempt to avoid future legal challenges, might take a narrow ruling from the court and apply it more broadly.
Murphy said some experts are concerned that states or universities would not just remove the portion of their applications where students are asked to identify their race, but also remove any mention of race in other parts, like essay prompts. Universities might even stop asking students to list their extracurricular activities or even the ZIP code in which they live, Murphy said.
“My fear is that an overzealous legislature might, in the spirit of these well-funded attacks on diversity and civil rights … say, ‘Oh, if colleges can’t consider race, then we’re going to need to scrub applications and remove all of these elements.’”
Right now, Texas universities are trying to interpret recently approved legislation that bans diversity, equity and inclusion programs in public colleges and universities that try to help underrepresented students — including students of color — succeed when they come to campus. Schools are still figuring out to what extent they need to eliminate or alter existing programs to comply with the new law.
Flores, the higher education policy expert at UT-Austin, said society is becoming more diverse, and actions that ignore that — like banning universities from how they consider race in admissions or discuss it in classrooms — will result in negative social and economic consequences for the state.
“A majority of our children are nonwhite, and a majority of all [students] are not white, and now the majority of our entire population is nonwhite,” Flores said. “You can’t function as a society if it’s poorly educated and does not have equal opportunity.”
Disclosure: Baylor University, Rice University, Southern Methodist University, Texas A&M University, Texas Christian University, Texas Tech University, University of Texas at Austin and 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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