UT likely safe from fed­eral ad­mis­sions suit

Schools deemed to be bi­ased against white ap­pli­cants vul­ner­a­ble.

Austin American-Statesman - - FRONT PAGE - By Ralph K.M. Hau­r­witz rhau­r­witz@states­man.com

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.”

AS­SO­CI­ATED PRESS 2015 J. SCOTT AP­PLE­WHITE /

Univer­sity of Texas Pres­i­dent Gre­gory L. Fenves speaks to re­porters out­side the U.S. Supreme Court on Dec. 9, 2015, fol­low­ing oral ar­gu­ments in Fisher v. UT con­cern­ing af­fir­ma­tive action in higher ed­u­ca­tion.

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