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Texas looms large in the background of two pivotal affirmative action cases before the U.S. Supreme Court that could change how race is considered in American higher education admissions.
On Monday, the U.S. Supreme Court heard back-to-back oral arguments in challenges to the race-conscious admission processes used by Harvard University and the University of North Carolina. The court’s conservative majority appeared to lean toward ending affirmative action, while the three liberal justices defended the practice. A decision isn’t expected until June.
Both cases are brought by Students for Fair Admissions, a nonprofit led by Edward Blum, who played a key role in a yearslong legal challenge to the University of Texas at Austin’s admissions policy. Blum recruited Abigail Fisher to be the plaintiff in that 2008 challenge after UT-Austin rejected the white undergraduate applicant. The country’s highest court in 2016 narrowly upheld UT-Austin’s right to give a slight boost to Black and Hispanic applicants, but the court has become far more conservative since that 4-3 ruling.
In the lead-up to Monday’s hearing, the Harvard and UNC cases received over 90 amicus briefs, according to SCOTUSblog. Many of them cited the previous UT-Austin case — and some came from Texas politicians, scholars and affirmative action advocates.
Texas Attorney General Ken Paxton filed an amicus brief last year arguing that Harvard’s admission process is discriminating against Asian Americans and that the country’s top court should overturn Grutter v. Bollinger, a 2003 landmark ruling that upheld colleges’ ability to narrowly tailor race-conscious admission and diversify the student population for educational benefits. He also joined a brief that says UNC’s practices are unfeasible “without unlawful racial discrimination.”
“The University of Texas was wrong. And the University of North Carolina and Harvard, respondents here, wrong Asian Americans by denying them an equal admissions process,” Paxton wrote in a more recent combined brief.
Students for Fair Admissions argues that Harvard’s admission process artificially depresses the number of Asian American students who are accepted. For UNC, the issue is more broadly about whether its model has violated the Fourteenth Amendment, which requires equal protection under the laws.
Notably, Paxton’s comment on UT stands in contrast to Gov. Greg Abbott, who supported the institution when he was the state’s attorney general. “Those who drafted and ratified the Fourteenth Amendment did not establish the principle of ‘colorblind’ government that opponents of race-conscious admissions too often invoke,” Abbott wrote in a brief to the Fifth Circuit Court of Appeals in 2011.
Thirty-three of the amicus briefs support Students for Fair Admissions, while 60 back Harvard and UNC.
Over 80 U.S. senators and representatives — including nine Texas Republicans, such as U.S. Senators Ted Cruz and John Cornyn — signed on to a brief filed in May 2022 that also challenged Grutter. It claims that the ruling stands against the Fourteenth Amendment and Title VI of the Civil Rights Act, which prohibits race-based discrimination.
Jonathan Mitchell, a former solicitor general of Texas who is better known as the legal architect of the state’s ban on abortions after about six weeks of pregnancy, made a similar argument on behalf of America First Legal, a right-wing group led by former President Donald Trump’s policy adviser Stephen Miller.
“[Title VI] prohibits all forms of racial discrimination at universities that accept federal funds, with no exceptions for ‘compelling interests,’ ‘diversity,’ or ‘strict scrutiny,’” Mitchell wrote.
But many more Texans have publicly defended affirmative action via amicus briefs.
Among politicians, three Texas Democrats — U.S. Reps. Joaquin Castro, Sylvia Garcia and Marc Veasey — signed on to an August 2022 brief with over 60 other Congress members that calls for the Supreme Court to reaffirm Grutter.
“Title VI, like [Brown v. Board of Education], has historically been used to dismantle segregation and enhance educational opportunities for all Americans. It remains a vital tool to promote desegregation and educational equity and is entirely consistent with Grutter,” read the brief.
An analysis of years of Texas’ top 10% policy — by which public universities automatically admit the top 10% of students in their high school’s class without considering race — also shows that it did not maintain and foster representation, the brief notes.
In addition, similar to briefs filed by Asian American groups, it stressed that Asians are not a cultural monolith and that many Asian ethnic groups still benefit from affirmative action. For instance, while 75% of Indian Americans in the U.S. have a college degree, the rate falls to 32% for Vietnamese Americans and 17% for Laotian Americans. Pew Research Center also found in 2018 that Asians are the “most economically divided group in the U.S.”
This criticism against the model minority myth — which perpetuates the idea of Asians being a successful and deserving minority and is used often as a “racial wedge” against Black Americans — is also backed by over 1,200 social scientists, including close to 50 based at Texas universities.
“The notion that race-conscious admissions policies discriminate against Asian Americans relies on and perpetuates harmful stereotypes against Asian Americans,” read the brief from the Asian American Legal Defense and Education Fund, which represents over 120 organizations and individuals including OCA Greater Houston.
“Opponents of race-conscious policies have long relied on this racist stereotype of Asian Americans to argue that other communities of color ‘simply need to work harder to attain social and economic mobility.’”
Disclosure: University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.