In its investigation of the use of race in admissions at Texas Tech’s five health and science schools, the education department’s Office for Civil Rights found that three never employed it and that a fourth quit considering it a mere 10 years ago. The fifth of the five schools—the School of Medicine—still uses race in admissions but has agreed to stop doing so by the end of the year. The SOM, however, has also said that it retains the option, so to speak, of reviving the use of race. And OCR has confirmed “that an applicant’s race can be used as one of the factors” in admissions decision making. It can be used in that way because the case law has not ruled it out.
When government classifies individuals on the basis of race or ethnicity in granting benefits, the action must be reviewed to determine whether it violates the Equal Protection Clause. The relevant legal rule is “strict scrutiny,” which has two parts. First, strict scrutiny asks whether the use of race serves a “compelling state interest” and, second, whether it is “narrowly tailored” to achieve that interest.
The Supreme Court has endorsed “student body diversity” as the interest to be pursued in the context of admissions to institutions of higher education. Yet that pursuit, and the narrow tailoring that goes with it, can occur only if racial classifications have been made—as they were not at four of the five Texas Tech schools.
The SOM does not grade very well. OCR says it has “concern” that the school’s use of race “may fail the narrow tailoring requirements that form the second prong of strict scrutiny review.” The SOM, like other schools across the country that use race in admissions, is supposed to subject its race-conscious admissions policy “to appropriate periodic review,” yet it failed to do so, according to OCR. Nor did the SOM “clearly document, and interviews did not reveal,” that the school considered whether its use of race-neutral alternative measures were sufficient “to obtain the educational benefits that flow from student body diversity.” OCR says the SOM “produced no review of the continued necessity for race-conscious policies,” despite requests from OCR for same. And the SOM could not say how and when race was used in the admissions process.
OCR pointed to yet more problems with the SOM’s narrow tailoring. Indeed, it would seem that the school’s narrow tailoring wasn’t real narrow tailoring. The SOM, again according to OCR, may be about to “fail” the second part of strict scrutiny and violate Title VI of the Civil Rights Act of 1964, which forbids discrimination by recipients of federal aid.
The SOM is the part of the Texas Tech story that doesn’t look so good on second and third looks. At some point, preferably soon, the school should adopt unambiguously color-blind admissions.
When OCR began its investigation of the five schools that comprise the Texas Tech University Health Sciences Center, the latter said that it had established “a compelling [state] interest” in accord with the case law. “TTUHSC stated that its institutional goal to prepare health professions students for an increasingly diverse workforce and patient population requires a student body that is sufficiently diverse to serve the particular needs of the diverse populations . . .”
It didn’t take long for the preceding sentence by the Health Sciences Center to acquire three uses of the adjective “diverse,” as you’ll see from a close reading of it. I wonder how often the word diverse and its kindred terms are used in formal discussions on campus about the use of race in admissions. If there were records for usage of words in higher education, “diverse” would have to rank high.
