Racial Preference in Austin
The University of Texas goes to great lengths to disguise the role of race in admissions.

Justice Anthony M. Kennedy


Texas strongly implies that the absence of a quota, numerical goal, or “race-based target” combined with its sincere devotion to “diversity” gives it license to consider race however it chooses. I’ve never understood what is wrong with quotas that is not also wrong with any policy that rewards some people and burdens others because of their race or ethnicity. Indeed, reading Texas’s repeated touting that it eschews goals and targets made me think for the first time that quotas would actually be preferable to the “holistic” malarkey defended here and elsewhere. Quotas at least exert some downward pressure on the consideration of race, whereas what Texas seeks here is freedom from any limits on consideration of race as “one of many factors.”

Noting that “African-American and Hispanic students were nearly nonexistent in thousands of classes,” Texas describes that situation as “a red flag that UT had not yet fully realized its constitutional interest in diversity.” In 2003, the Austin campus was still afflicted “with a “stark racial isolation in classrooms” even though the pool of Hispanic applicants since 1996 had been large. This apparent desire to bring “diversity” to every classroom suggests a virtually insatiable appetite for race-conscious admissions extending into the indefinite future.

Readers of the brief could be excused for believing that the primary academic mission of the University of Texas is to combat racial and ethnic stereotypes — stereotypes that it believes its top–10 percent plan actually reinforces:

The African-American or Hispanic child of successful professionals in Dallas who has strong SAT scores and has demonstrated leadership ability in extracurricular activities but falls in the second decile of his or her high school class (or attends an elite private school that does not rank) cannot be admitted under the top 10% law. Petitioner’s position would forbid UT from considering such a student’s race in holistic review as well, even though the admission of such a student could help dispel stereotypical assumptions (which actually may be reinforced by the top 10% plan) by increasing diversity within diversity.

That is not to say that a minority applicant with a less disadvantaged socioeconomic background is preferred.

No? What then does it say? Is Texas similarly concerned to dispel stereotypes of Asian grinds by giving preferential treatment to, say, Chinese- or Japanese-American football players whose SATs are below average? Texas’s preferential treatment of blacks and Hispanics reinforces the most invidious stereotype of all — that they are unable to succeed unless they receive special treatment.

Ironically, some of the most cogent criticisms of the principles underlying the racial-preference policy defended in this brief can be found in the early writings of one of the UT lawyers who signed it, Douglas Laycock, a law professor at the University of Virginia. As a professor at the University of Michigan and, before that, at Texas, Laycock was heavily involved in defending other race-preference admissions policies. But earlier in his career he wrote several articles — some with his wife, Teresa Sullivan, the formerly fired but now rehired president of the University of Virginia — arguing, as in this influential 1980 law-review article, that “no individual” should be “treated differently because of his membership” in “a racial, sexual, religious, or ethnic group.”

That article quoted and strongly endorsed Senator Hubert Humphrey’s insistence during the debate over the Civil Rights Act of 1964 that “the meaning of racial or religious discrimination is perfectly clear. . . . It means a distinction in treatment given to different individuals because of their different race, religion, or national origin.” In a 1983 law-review article, Laycock disagreed with those who “use race and sex as cheap proxies for traits with which they are correlated” and concluded by affirming that “sex and race blindness have been the civil rights ideal.” 

Laycock emphasized that civil rights protect individuals, not groups. In a critical review (1981) of John Hart Ely’s Democracy and Distrust, Laycock responded to the argument that the colorblindness he then favored would inhibit racial progress:

It is no answer to say that Ely’s construction is more likely to produce social and economic equality in the long run. That statement, which I do not concede, is comprehensible only in terms of equality for groups. But the constitutional command is equality for individuals. Moreover, it is the “protection of the laws” that must be equal, not social and economic statistics.

Like many liberals, however, Laycock later abandoned his devotion to colorbindness for racial preferences, and in the Hopwood case he defended the UT law school’s consideration of race in the admissions process. Writing about Hopwood several years after it had been decided (but before it was overruled in Grutter in 2003), Laycock revealed how far he had moved from his earlier views, arguing that affirmative action didn’t discriminate against very many people (an argument I’ve addressed here, here, and here). “With more than 4000 applicants a year,” he wrote, “affirmative action for a hundred or so of them has little effect on everybody else.”

Perhaps. But for those hundred or so individuals who are denied admission every year because of their race, affirmative action has an effect that is negative — and dramatically so. Ask Abigail Fisher.

— John S. Rosenberg is a lapsed historian who writes on discrimination and other matters at