I return to the federal probe of Texas Tech, an unusual story in the annals of affirmative action, if only for how long the investigation took. Under the Constitution and Title VI of the Civil Rights Act of 1964, Tech, as a recipient of federal funds, may not discriminate on the basis of race and ethnicity in admissions. The Education Department’s Office for Civil Rights enforces this non-discrimination standard. In 2005 it complained that Tech was using race and ethnicity in its admissions programs. We (the Center for Equal Opportunity) filed the complaint, and now 14 years and three administrations later we have answers—good if not complete ones.
It turns out that several schools within the university had never considered race in admissions. Another had used race for four years before quitting the practice. Only one was still using race in admissions—the School of Medicine. But it was willing to sign a resolution of agreement committing it to end the use of race later this year.
What’s interesting is the focus of OCR’s investigation. Race-based admissions policies must pass “strict scrutiny,” as OCR points out. Which means the policies must be “narrowly tailored” to achieve “a compelling interest,” which interest, as endorsed by the Supreme Court 16 years ago in Grutter v. Bollinger, is student body diversity and the educational benefits that flow from it (ostensibly, that is).
When strict scrutinizists debate the legal principle and what it means, they usually focus on compelling interest and racial diversity. In the Texas Tech investigation, however, OCR examined whether any of the schools “met narrow tailoring requirements, rather than whether [they] sufficiently established a compelling interest when implementing any race-conscious admissions policies.”
OCR said that for a use of race to be narrowly tailored, there must be a serious, good faith review of workable, race-neutral alternatives to achieve the desired interest, that of student-body diversity. Nor is this all. “There must be a “flexible and individualized review of applicants, and “the use of race must not unduly burden applicants of any group.” Also, consideration of race must be subject to periodic review. “In this regard it is incumbent upon [the school] to show that the approach utilized in promoting diversity is narrowly tailored to meet the compelling interest.”
So where does the School of Medicine really stand with OCR? The school has signed that no-more-use-of-race in admissions resolution. But the resolution allows the school to return race to the admissions process, as I noted last week. OCR has concerns, the leading one that the medical school at some point “may fail the narrow tailoring requirements.” Should that happen, the use of race would fail strict scrutiny and violate Title VI, not happy prospects for a university and a medical school that otherwise did well with the education investigators.
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Toward Colorblindness On Campus . . .
Collected from Documents in the Case
Texas Tech Health Science Center “will discontinue all consideration of an applicant’s race and/or national origin” in the medical school’s “admissions policies or processes.”
“An applicant’s race and/or national origin are no longer to be considered as part of the holistic admissions process.”
Applications and other admissions materials will be revised so that they “do not include race or national origin as factors to be considered in the admissions process.”
TTHSC will provide OCR with documents showing that “it has discontinued any consideration of race or national origin in admissions to the medical school.” . . . And
“with documents showing revisions to admissions materials showing that race or national origin are no longer to be considered in the admissions process.”
