A Victory for Colorblindness in Texas

Last month, the Fifth Circuit Court of Appeals handed Students for Fair Admissions (SFFA) its latest victory, this time over the University of Texas at Austin. In a unanimous decision, the court suggested that the university’s admissions officials may be more likely to violate the Supreme Court’s 2023 affirmative-action ban if the officials can access applicants’ racial “check-box” data—the race and ethnicity they mark on their applications. The decision gives the courts and the Trump administration another means by which to hold universities accountable.

UT Austin had used racial preferences in undergraduate admissions for decades. Before 1997, it did so overtly, basing admissions decisions on applicants’ “Academic Index” (AI)—a composite of high school grades and standardized test scores—and race. Under this race-conscious system, the university awarded blacks, Hispanics, and other “underrepresented” minorities an admissions boost, which it did not extend to whites and Asian Americans. In 1996, the last year that UT Austin considered only AI and race when evaluating applicants, 4.1 percent of its incoming freshman class was black, 14.7 percent was Asian American, and 14.5 was Hispanic.

In 1997, the Fifth Circuit struck down the University of Texas Law School’s affirmative action program in Hopwood v. Texas. UT Austin’s admissions officers then turned to racial proxies, supplementing AI with something called the “Personal Achievement Index” (PAI), a measure derived from applicants’ essays and “personal achievement score.” That score was based on a “holistic review” of each applicant, which included “special circumstances” like whether the applicant came from a household with a single parent or one in which the primary language spoken was not English, both of which could be used as proxies for race. The first class admitted under the university’s “AI/PAI Plan” was 2.7 percent black, 15.9 percent Asian American, and 12.6 percent Hispanic.

The decline in black and Hispanic freshmen from the last year of the university’s affirmative-action regime to the first year of its AI/PAI policy troubled state legislators. In 1997, they passed a law that granted Texas high schoolers ranked in the top 10 percent of their graduating class automatic admission to the state university of their choice, the most popular being UT Austin, the flagship. This “Top 10 percent plan” utilized existing segregation among high schools in the state to boost the number of underrepresented minorities at the university. Meantime, the university considered out-of-state applicants and those ranked outside the top decile of their Texas high school according to the AI/PAI Plan. The new law took effect in 1998; by 2000, enrollment for black and Hispanic freshmen at the flagship had returned to pre-Hopwood levels.

UT Austin then reinstated its affirmative-action program after the Supreme Court held, in 2003’s Grutter v. Bollinger, that universities could use race as “one factor among many” in admissions. While the flagship continued to admit students through both the Top 10 percent law and the AI/PAI Plan, it now used race explicitly when determining an applicant’s personal achievement score. In fact, SFFA claimed that under UT Austin’s system, “an applicant’s race appeared on the front of every application file, and reviewers were aware of it throughout the evaluation.”

When the Supreme Court banned racial preferences in SFFA v. Harvard two years ago, the University of Texas’s Board of Regents repealed UT Austin’s race-conscious admissions policy for regular-admission (i.e., non–Top 10 percent) applicants. Today, administrators are prohibited from including students’ racial check-box data in their files. They’re also prohibited from considering race when calculating applicants’ PAI.

History has taught us, however, that just because university administrators are told not to do something doesn’t mean that they’ll listen. SFFA, in the latest iteration of its lawsuit against UT Austin, provides the courts with reason to believe that the “public Ivy” may be exercising racial preferences.

Admissions officials at UT Austin, SFFA contended, still get “unrestricted access” to applicants’ racial information. In particular, SFFA claimed that the university allows officers to consult a dashboard of aggregated data that includes the race and ethnicity of all applicants, admittees, and enrollees. This dashboard is “updated daily and includes both current numbers and year-over-year changes.”

SFFA asked the United States District Court for the Western District of Texas and, on appeal, the Fifth Circuit to issue a permanent injunction barring admissions officials at UT Austin from seeing applicants’ racial check-box data. While state law requires universities to collect and report this information to the Texas Higher Education Coordinating Board, it doesn’t require admissions officers to have access to the data or universities to report it before making admissions decisions.

Since the Supreme Court’s SFFA ruling, advocates of color blindness have concentrated on the ways that universities have tried to skirt the decision: racially coded essay prompts, racial proxies, and the elimination of standardized testing requirements. They’ve paid much less attention to the idea at the center of SFFA’s lawsuit against UT Austin: that elite universities, by providing their admissions officers with unfettered access to applicants’ racial check-box data, may be discriminating against white and Asian American applicants in plain sight.

SFFA has advanced this idea before. In 2023, for example, the organization required Yale, as part of a settlement, to bar admissions officials from accessing applicants’ racial check-box data, as well as aggregate data on the racial or ethnic makeup of the pool of applicants or admitted students.

The Fifth Circuit, in ruling in SFFA’s favor, acknowledged that UT Austin administrators might be more likely to violate the Supreme Court’s affirmative-action ban if they’re given access to applicants’ racial check-box data. The court remanded the case and noted that “extensive discovery will be needed” to unearth whether officials have used this data to discriminate. Given the flagship’s decades-long use of racial preferences, it wouldn’t be surprising if SFFA finds just that.

SFFA’s decision to focus on racial check-box data is therefore shrewd. For one thing, if the UT Austin case were to make its way to the Supreme Court, it’s likely that the organization would again prevail. During oral arguments in Students for Fair Admissions v. Harvard, several justices, including Chief Justice John Roberts, appeared to take issue with the fact that a black applicant could receive an admissions benefit solely because “he checks African American.”

Of course, litigation takes time. SFFA’s case against Harvard took eight years to reach the Supreme Court after it was filed. A quicker alternative would be for the Trump administration to require, as part of its efforts to enforce SFFA v. Harvard, that any university receiving federal funds prohibit admissions officers from accessing applicants’ racial check-box data.

UT Austin would like us to believe that admissions officials with access to information on applicants’ racial and ethnic backgrounds won’t use that information in their decision-making. But given their past, why should we?

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