UT won an earlier challenge to affirmative action at the U.S. Supreme Court, but this one is in a state court.
Once again, UT alumnus Edward Blum has organized a case against his alma mater.
This time, Edward Blum has set his sights on the state courts of Texas rather than making another run at the federal courts. The Supreme Court upheld UT’s use of affirmative action by a 4-3 vote in June 2016.
Blum’s nonprofit, Students for Fair Admissions, which says it has more than 20,000 students, parents and other members in Texas and elsewhere around the nation, contends that UT grants preferences to African-American and Hispanic applicants at the expense of white and Asian applicants. The suit, filed in state District Court in Travis County, seeks a permanent injunction barring UT from using racial factors in admissions decisions.
“It is our belief that the Texas Constitution unequivocally forbids UT-Austin from treating applicants differently because of their race and ethnicity,” said Blum, the group’s president.
Maurie McInnis, UT’s executive vice president and provost, said in a statement that “diversity is central to our pursuit of excellence” and that all students and other members of the campus community reap its benefits.
“The policy is narrowly tailored,” McInnis said. “It complies with state and federal law and the Texas and U.S. Constitutions and has been upheld by the U.S. Supreme Court.”
UT considers such factors for a relatively small fraction of its entering class. Under state law, UT reserves 90 percent of its freshman slots for state residents, with the remainder for out-of-state and international students. And at least three-fourths of its freshmen from Texas get in under a state law that grants automatic admission based on their 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 other matters. In last year’s Supreme Court majority opinion in Fisher v. UT-Austin, Justice Anthony Kennedy wrote “that race consciousness played a role in only a small portion of admissions decisions,” asserting that this was “a hallmark of narrow tailoring, not evidence of unconstitutionality.”
But Students for Fair Admissions contends that the Supreme Court’s ruling has no bearing on its lawsuit, which relies on two passages in the Texas Constitution’s Bill of Rights and one provision of state law.
Section 3a of the state’s Bill of Rights, approved by voters in 1972, says: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.” This amendment provides “more expansive protection against discrimination” than the U.S. Constitution, rendering UT’s use of racial preferences “patently unconstitutional under the Texas Constitution,” the lawsuit claims.
Blum’s group says its case is also bolstered by Section 3, which says in part: “All free men … have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges.”
The state law cited by the lawsuit is the Civil Practice and Remedies Code, which includes a provision declaring that an employee of the state “may not, because of a person’s race, religion, color, sex, or national origin … refuse to permit the person to participate in a program owned, operated, or managed by or on behalf of the state.” The lawsuit claims that this creates “a broad statutory right to be free of official discrimination.”
Steven Schwinn, a professor at the John Marshall Law School in Chicago who teaches and writes about constitutional law, said he was “a little puzzled” that the suit wasn’t filed sooner.
“I understand why they challenged the program under the federal Constitution — I’m sure they thought the time was right for bringing the federal challenge,” Schwinn said. “It just smacks of politics to me, but maybe the Texas Constitution and statute give them a little bit more traction than what they got under the federal equal protection clause.”
Mishell Kneeland, a lawyer in Austin with the Culhane Meadows law firm who worked on the Fisher case as an assistant attorney general in Texas, said the new case appears to be designed to wind up at the state Supreme Court. She doubts that the plaintiff will succeed, in part because the state’s constitutional standards are “relatively similar” to the federal version. “The University of Texas’ admissions process is very thoughtfully crafted,” she added.
Blum, a former stockbroker and onetime candidate for Congress who majored in English and government at UT, isn’t a lawyer, but he has made something of a cottage industry out of lining up lawyers, funding 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. He has ushered cases into the marble-and-mahogany chamber of the nation’s highest court six times.
His Project on Fair Representation, another nonprofit group, underwrote the lawsuit by Abigail Fisher, a white woman denied admission to UT. In its first opinion in that case, a 7-1 decision written by Kennedy in 2013, the Supreme Court set aside a lower court’s approval of UT’s use of affirmative action 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, after which the high court took the case a second time.
Blum has 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 2014, contend that well-qualified Asian-Americans are routinely denied admission solely on the basis of race.
No other state has admissions laws precisely like those governing UT.
A 1997 state law offered automatic admission to UT and other public colleges and universities to students ranking in the top 10 percent of their Texas high school class. In 2009, the law was modified for UT, allowing it to cap automatically admitted students at three-fourths of its freshmen from Texas.
Each fall, the university notifies Texas school officials of the class rank that current high school juniors need to attain by the end of their junior year to be automatically admitted; the cutoff is 7 percent for the 2017-18 and 2018-19 academic years.
Blum’s latest lawsuit against UT doesn’t come as a surprise. In March, he began inviting students who were rejected by UT to provide grades, test scores and a list of outside activities to help build the new case.