The Office for Civil Rights Investigates
The Education Department’s Office for Civil Rights has dismissed a complaint by the Center for Equal Opportunity alleging that Texas Tech University unlawfully used race and ethnicity as a factor in its undergraduate admissions programs, starting with the entering freshman class of 2005 — but wait! Yes, the complaint was “dismissed” in the legal sense, but not until OCR had made sure that race was no longer a consideration in the University’s admissions programs. CEO has long argued for race-neutral admissions, at Texas Tech as well as at other institutions of higher education, and we like to think our efforts made a difference in Tech’s decisions.
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In its investigation of the CEO complaint, OCR found that a few years ago the university had quit considering race in admissions. So, there being nothing more to investigate—no “racial classifications,” as the lawyers say—OCR’S decision to dismiss the complaint was sensible. The Texas Tech inquiry calls to mind the 2003 case of Grutter v. Bollinger, the challenge to racial preferences in which Justice O’Connor, writing for the Supreme Court, said that “all race-conscious admissions programs [must] have a termination point.” Texas Tech reached its point 5 years ago.
In conducting its investigation, OCR looked at Tech’s various admissions processes, most importantly the “holistic” one used to evaluate an applicant in terms other than quantitative measures. They included Extracurricular activities, Leadership experiences, Socioeconomic background, and Diversity of experiences. OCR found that race “had been expressly mentioned as a factor” in the definition of Diversity of experiences. But in December 2013 the school “officially changed the definition” by removing the words “consideration of race.” Here was the revised text: “Diversity of experiences may include but will not be limited to, study abroad, knowledge of other cultures, proficiency in other languages, and experience with college preparatory programs.”
Interviews with university administrators and staff confirmed the changes and also provided the context in which they were made: “The University felt that it could remove race/ethnicity as an express consideration in its undergraduate policy without changing the way it admitted students”—by increasing the number of applicants. Admissions officers further confirmed that those making final admissions decisions “do not use race as a factor in determining whether to admit or deny a student.”
University officials told OCR that the school was not “actually” using race or ethnicity to make admissions decisions (whatever “actually” means) and that it had been successful “in increasing diversity through its recruitment efforts,” which, apparently, did not use race. The university was not satisfied with “its diversity numbers overall, but it was satisfied that it was “moving toward where it wanted to be through recruiting and did not need to consider race or ethnicity in admissions.” The second half of this sentence is reassuring but the first half is a mess. “Diversity numbers,” if they become quotas, are unconstitutional, according to myriad Supreme Court decisions. It’s hard to imagine that the university would want to go down this bumpy road. Fortunately, admissions officers who participate in the holistic process told OCR that “they have never considered an applicant’s race.”
“Diversity numbers” is a term, the only one, really, that strikes a discordant tone with where Tech is on the use of race in admissions. The large state university in Lubbock has clearly met “the requirement,” to quote Justice O’Connor in Grutter, “that all race-conscious admissions programs have a termination point.” She added a critical reminder—that “the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.”
