Affirmative action in UT admissions faces new legal challenge

11:02 p.m Wednesday, March 1, 2017 Texas News & Politics
Abigail Fisher, second from left, and her adviser, Edward Blum, second from right, walk out of the Homer Thornberry Judicial Building after a hearing in her case against the University of Texas in 2013.

A new round of litigation challenging the consideration of race in admissions at the University of Texas is being organized by the same UT alumnus who took a similar case to the U.S. Supreme Court twice and lost.

This time, Edward Blum might have his sights set on the state courts of Texas rather than making another run at the federal courts. The U.S. Supreme Court upheld UT’s race-conscious admissions program by a 4-3 vote in June.

Blum, a former stockbroker and onetime candidate for Congress, is president of Students for Fair Admissions, a nonprofit group that on Thursday began inviting students who were rejected by UT to provide grades, test scores and a list of outside activities to help build a new legal case.

“A student’s race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university,” the group says on its website, studentsforfairadmissions.org, which notes that its more than 20,000 members oppose racial classifications and preferences in college admissions.

Asked why he wants to challenge affirmative action in UT admissions again when the nation’s highest court has pronounced it constitutional in Fisher v. University of Texas at Austin, Blum told the American-Statesman: “The Supreme Court ruled that UT’s polices in 2008 were constitutional. However, the court also noted that UT could not continue those polices indefinitely and must continue to review them with the goal of ending racial classifications and preferences. Students for Fair Admissions believes that UT has not met its constitutional obligations and is vulnerable to a new legal challenge.”

Blum, who majored in English and government, isn’t a lawyer, but he has made something of a cottage industry out of lining up funding, lawyers and plaintiffs in a 20-year quest to end the use of racial and ethnic considerations in college admissions, voting rights and other aspects of public policy.

His Project on Fair Representation, another nonprofit group, underwrote the Fisher case. In its first opinion in that case, a 7-1 decision written by Justice Anthony Kennedy in 2013, the Supreme Court set aside a lower court’s approval of UT’s consideration of race and ethnicity and told that court to conduct a “searching examination” of whether such considerations are really necessary to obtain the educational benefits of diversity.

The lower court concluded once again that UT’s program was legal. The Supreme Court’s decision to take the case a second time, an unusual move, seemed to signal a growing willingness among its conservative members to reject UT’s approach.

But Kennedy, the swing vote, sided with the university in an opinion that said “race consciousness played a role in only a small portion of admissions decisions,” calling that “a hallmark of narrow tailoring, not evidence of unconstitutionality.” He also wrote that school officials had an “ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”

The plaintiff in that case was Abigail Fisher, a white woman who sued in 2008 after her application for UT admission was rejected. About three-fourths of freshmen get into UT under a state law that guarantees acceptance solely on the basis of Texas high school class rank. The cutoff for automatic admission has ranged from the top 10 percent to the top 7 percent depending on the university’s estimates of what it will take to fill that portion of the class.

The remaining applicants, including those from outside Texas, are considered under a so-called holistic review that takes race and ethnicity into account along with numerous other factors. The holistic portion of the admissions program was the focus of the Fisher case and would likely be the focus of a new case.

Blum also organized lawsuits in which Students for Fair Admissions is the plaintiff against Harvard University and the University of North Carolina at Chapel Hill. Those cases, filed in federal courts in October 2014, contend that well-qualified Asian-Americans are routinely denied admission solely on the basis of race. The lawsuits seek “the outright prohibition of racial preferences in university admissions — period.” Harvard and UNC-Chapel Hill say their admissions programs pass legal muster.

Asked whether a lawsuit against UT would be filed in federal court or state court, Blum said, “Both are viable avenues to bring a new challenge.”

Inasmuch as he is fresh off a loss in his federal court challenge to UT’s program, Blum might have a better chance in state court. Article 1 in the Texas Constitution’s Bill of Rights states: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.” The amendment was added in 1972.

View full experience