As UT's Diversity Increases, So Does The Chance Of Another Affirmative Action Challenge

Jul 12, 2018

President Trump’s decision to roll back Obama-era guidelines supporting race-based college admissions could mean another legal challenge for UT Austin.

Since the university began factoring race and ethnicity into its admissions in 2003, UT says it has increased student body diversity.  But it has also been embroiled in a continual court battle over the legality of affirmative action – a battle that could end if Brett Kavanaugh fills the soon-to-be-vacant seat on the U.S. Supreme Court.

About three-quarters of UT students are admitted under Texas’ public university admission rules, which give a portion of the highest performing high school students automatic admission. The 1997 law establishing those guidelines, known as the top 10 percent rule, required schools to admit the top 10 percent of students (now, it's the top 7 percent). It came about as a way to get more minorities into the state’s top public universities. Some opponents to race-based admissions argue that it’s the top 10 percent rule, not affirmative action, which has ultimately led to more diverse campuses.

"I can see, with Brett Kavanaugh on the court, an end to racial preferences in college admissions."

Standard admissions guidelines remain for the roughly 25 percent of students who aren’t admitted automatically. The university says it does consider race as a factor for these applicants, but argues that it’s only one small piece of a broader definition of diversity.

“The university seeks to provide the highest level of education for students,” says UT spokesperson J.B. Bird. “[It] believes diversity is essential to those efforts.”

The same day the Trump administration rescinded the guidance, UT Austin put out a statement saying it would not change its policy.

“The Supreme Court upheld our holistic admissions policies in 2016,” Bird says. “Those policies remain central to our constitutional mandate to serve the State of Texas and our mission to prepare graduates to thrive in society.”

In 2003, the Supreme Court upheld the use of affirmative action at UT. Since the school reinstated race-based admissions, white undergraduate enrollment at UT dropped from 60 percent to 42 percent. Hispanic enrollment jumped from 14 percent to 23 percent. Asian and black students also saw an increase, but not as dramatic.

It’s worth noting that, in that time, the demographics of Texas have also changed. In 2016, Hispanic Texans made up almost 40 percent of the state’s population - a 7 percent increase since 2000, according to the U.S. Census Bureau.

Still, there has been a significant change in the racial makeup of the campus, and UT argues the consideration of race and ethnicity helps diversify a campus. But Ilya Shapiro, a senior fellow of constitutional studies at the libertarian-leaning Cato Institute, isn’t convinced.

“My perspective is that the use of racial preferences in college admissions is constitutionally suspect,” he says.

While the courts have upheld affirmative action in the past, Shapiro says we could see that change if Kavanaugh is confirmed to the Supreme Court. Shapiro thinks, of all the speculative debates facing the court, it’s likely that Kavanaugh could, and would, cast a deciding vote against affirmative action.

“I can see, with Brett Kavanaugh on the court, an end to racial preferences in college admissions,” he says.

Shapiro says, despite fears to the contrary, cases surrounding abortion rights and the so-called Chevron deference won’t be overruled overnight, but an affirmative action challenge could wind up on the court’s docket soon.

Students for Admissions, a Virginia-based, conservative-leaning nonprofit, is suing both Harvard and the University of Texas for allegedly giving preferential treatment to racial minorities. Both of those cases are making their way through the courts, so the legality of affirmative action is likely to be debated again – with a new justice on the bench.