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Longhorn Discrimination By: Edward Blum
FrontPageMagazine.com | Friday, January 23, 2004

The rivalry between the Lone Star State's flagship universities -- Texas A&M and the University of Texas -- is about to grow more intense. And no, it’s not football we’re talking about here; it’s something far more important to our state and nation: It is the way we want our children judged in their pursuit of a college education.

At issue is the use of race and ethnicity in the admissions process at Texas A&M and the University of Texas. Last month, Texas A&M announced it will not consider a student’s skin color and ethnic heritage during the admissions process, while UT announced its intention to do just the opposite. For those of us who believe that one’s race and ethnicity should not be a factor in whether a student is admitted or rejected to college, A&M’s decision was the correct choice. On the other hand, UT’s decision to begin using racial and ethnic preferences in 2005 after nearly a decade of colorblind admissions, is not only morally wrong but will undoubtedly trigger more costly and polarizing lawsuits.

The law in these matters is now settled. Although the U.S. Supreme Court’s recent decision in the Univeristy of Michigan cases allows schools to use preferences for the next 25 years in order to achieve racial “diversity,” the Court specifically stated that admissions preferences may not be used if race-neutral means have not been considered first. Since the Texas legislature passed the Top 10-percent plan in 1998 -- a plan that is race-neutral, granting automatic college admissions to any student graduating in the top-10 percent of his class -- UT has not only considered and employed such race-neutral alternatives but, most importanty, have successfully implemeneted them. Racial diversity at UT is higher today without treating students differently by race than it was when they did.

In spite of this, University of Texas President Larry Faulkner and the UT Board of Regents have decided to reintroduce racial and ethnic preferences into the admissions process of the UT system. President Faulkner claims that because the majority of UT classrooms are not “diverse,” it is necessary to re-introduce preferences for those applicants not admitted through the Top10-percent plan.

This argument won’t pass judgment in a court of law and is little more than an attempt by UT to recklessly stretch the narrowly allowable use of racial preferences by the high court. The Supreme Court opinion in the Michigan cases did not sanction the attempt to achieve proportional diversity in classrooms, dorms, laboratories, or sports teams, but rather, “student bodies.” Furthermore, social science data consistently reveals that students admitted to a highly competitive university like UT with lower grades and SAT scores than average avoid enrolling in difficult science, engineering, and mathematics classes -- the very ones that Dr. Faulkner infers are too white (or Asian) and not racially “diverse” enough.

Nor should the Texas legislature allow this to take place. UT already has a dismal legal record in civil rights matters, having lost the 1950 landmark Supreme Court case of Sweatt v. Painter, as well as Hopwood v. Texas in 1996. In both of those cases, UT Law School denied admission to applicants simply because they had the wrong skin color, once to a black student and once to a white.

Texas A&M President Robert Gates wisely encouraged the A&M Board of Regents to reject the use of race in admissions. President Gates said, “Students at Texas A&M should be admitted as individuals, on personal merit -- and on no other basis.” His willingness to apply a nondiscriminatory standard makes UT’s position even more untenable, especially in light of fact that A&M last week dropped their legacy preferences, calling them inconsistent with merit-based admissions.

It is also likely that the federal Department of Education’s Office for Civil Rights will challenge UT’s decision.  President Bush personally strongly supported the use of race-neutral means to achieve diversity, first as governor and as president.  Indeed, the Bush Administration has pointed to the system UT is now rejecting as a model approach.

Even though the U.S. Supreme Court allowed universities to use race-based affirmative action in the admission process for the time being, they didn’t mandate it. Indeed, by establishing a cut-off date of 2028, the Court recognized these temporary discriminatory policies to be an aberration to the timeless constitutional principles of equal rights.

As Dr. Faulkner has publicly noted as far back as 2000, the various colorblind admissions policies at UT are “functioning well.” It would be a grave moral -- to say nothing of a legal -- mistake for him and the Board of Regents to abandon them now.

Edward Blum is senior fellow at the Center for Equal Opportunity.

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