The University of Texas is likely well-shielded against a potential legal assault on affirmative action by the Trump administration, thanks to a U.S. Supreme Court decision last year approving its limited consideration of race and ethnicity in admissions. But other colleges and universities might be more vulnerable to an emerging shift in policy at the U.S. Justice Department.
The department is preparing to organize a unit to investigate and possibly sue universities deemed to be discriminating against white applicants for admission, according to a New York Times article that cited an internal document. The project reportedly would be run by political appointees as opposed to career civil servants.
“You can never stop somebody from suing, but you can do the best you can to make sure your client is in a good position,” said Mishell Kneeland, a lawyer in Austin with the Culhane Meadows law firm who worked on the UT case as an assistant attorney general in Texas. “I do think UT is in a good position.”
Kneeland doubts whether any public or private university in Texas would become a target of the Justice Department because of the support the state’s senators, John Cornyn and Ted Cruz, have given to some of President Donald Trump’s priorities.
Douglas Laycock, a University of Virginia law professor who served on UT’s legal team in the Supreme Court case, isn’t so sure.
“I don’t know how much the Justice Department cares about the state’s senators if they’re attacking universities,” Laycock said. “They might. It might be easier to go after a flagship in a blue state.”
The Justice Department memo caused much hand-wringing Wednesday, although the department downplayed its importance, saying it involved only one case. “The posting sought volunteers to investigate one administrative complaint filed by a coalition of 64 Asian-American associations in May 2015,” Justice Department spokeswoman Sarah Isgur Flores said.
It’s not clear how many of roughly three dozen public universities and approximately 40 private colleges and universities in Texas take race and ethnicity into account in admissions. The Texas Higher Education Coordinating Board does not oversee institutions’ admissions processes, said Kelly Carper Polden, a board spokeswoman.
Nonetheless, it appears that many public universities do not consider race or ethnicity. Officials at Texas State University and Texas A&M University, for example, said such factors play no role in admissions decisions. However, some schools — notably UT and A&M — go to considerable lengths to recruit applicants from heavily minority areas in Dallas, Houston, the Rio Grande Valley and other parts of the state.
“We do a lot of proactive recruitment of underrepresented students, including African-Americans, first-generation students, Hispanics and other underrepresented minorities,” said Amy B. Smith, an A&M spokeswoman.
At Rice University, which is private, race and ethnicity are taken into account.
“We consider an applicant’s race or ethnicity as a factor in the admission process and believe that racial and ethnic diversity is an important element of overall educational diversity,” Rice says on its website. “Though race or ethnicity is never the defining factor in an application or admissions decision, we do seek to enroll students from underrepresented groups in sufficient and meaningful numbers to prevent their isolation and allow their diverse voices to be heard.”
Another private school, Trinity University in San Antonio, “treats each applicant as an individual and considers race as one of many factors in the admissions process,” said Sharon Jones Schweitzer, a spokeswoman.
Ray Martinez III, president of the Independent Colleges and Universities of Texas, said he didn’t know how many such schools consider racial and ethnic factors, but he expressed confidence that any doing so “follow current law, which allows for a limited amount of race-conscious decision-making. How you define that limited amount is perhaps what this new Justice Department task force is going to be considering.”
State Rep. Gina Hinojosa, a Democrat from Austin who graduated from UT and whose district includes the campus, said the reported Trump administration plan “could have a chilling effect” on efforts to ensure equal access to the flagship. She said “significant disparities remain” despite years of efforts to diversify enrollment at her alma mater.
Black freshman enrollment at UT has averaged a little more than 4 percent since 1995, an American-Statesman analysis found. Blacks made up 5.1 percent of the most recent freshman class.
At least three-fourths of UT’s freshmen get in under a state law that grants automatic admission based on Texas high school class rank. Only the remaining applicants, including those from other states and abroad, are considered under a so-called holistic review that takes race and ethnicity into account along with grades, essays, leadership qualities and numerous other factors.
Gary Bledsoe, president of the Texas NAACP, said the reported Trump administration plan would “feed off of racial resentment and exacerbate divisions in this country.”
State Sen. Kel Seliger, a Republican from Amarillo who chairs the Higher Education Committee, said he would be surprised if the Trump administration sues any schools, in Texas or elsewhere.
“I’m one of those people who is normally opposed to affirmative action,” Seliger said. “Is it discrimination if you try to add to the diversity of your student body, instead of discriminating against people because they’re white and there’s a bias or prejudice? I just think this idea is problematic on so many levels.”
This report includes material from The Associated Press.