Case: Students for Fair Admissions v. University of Texas at Austin

Students for Fair Admission, Inc. (SFFA), the same group that supported a white student’s allegation of racial discrimination against the University of Texas at Austin in 2008 (see Fisher v. University of Texas at Austin, 645 F. Supp. 2d 587, 608 (W.D. Tex. 2009), filed a complaint against the same university, its president, provost, and board of directors, on June 27, 2017 in Travis County Civil Court, the 53rd District court in Texas. The complaint (2017 WL 3331651) alleged that the practice of considering race and ethnicity as factors in a student’s application for admission discriminated against white and Asian students, and was therefore unconstitutional under the Texas constitution’s version of the Equal Rights Amendment and the state’s equal protection guarantee. The plaintiff sought injunctive relief and an order compelling the university to adopt “race-neutral” admission standards.

Under the Texas constitution, racial discrimination receives the highest level of judicial scrutiny. For a race-based policy to survive this heightened level of scrutiny, the policy must be well-defined, narrowly tailored, and enacted in service of a compelling state interest. It cannot exist in perpetuity. Using this standard, the plaintiff argued that the university’s multi-pronged admission practice routinely disfavored white and Asian students in order to have a diverse student body representative of the racial demographics of the state. The plaintiff noted that while African American and hispanic students’ ethnicities were considered as part of the admission process, the same consideration was not given to Asian, Asian American, or white students. The plaintiffs argued that using race as a factor in admission to the detriment of some applicants imposed an unreasonable burden on “non-preferred” applicants. They also argued that, because the student body was only 38% white, the state’s interest in having a diverse student body had been met and that its race-conscious admission practice should be replaced with a “race-neutral” admission policy.

Interestingly, the plaintiffs’ complaint cited the Kroll Report, which had found that the university misused its diversity rationale as pretext to justify admitting well-connected applicants via an admissions practice known as the “hold system.” This system allows for the UT president to consider a weaker applicant’s political and economic connections before choosing to admit or deny a student. Students admitted under the hold system are overwhelming low-achieving and white. Rather than ask for this process to be investigated, the plaintiff instead requested that the university’s consideration of race and ethnicity be eliminated from the University’s admissions process.

In response to the complaint, the defendants argued the plaintiff was merely repackaging arguments that were raised or should have been raised before the Supreme Court in Fisher (2017 WL 2781711). The defendants argued that though the plaintiffs felt the university had reached “enough diversity,” the university continued to have a legitimate interest in admitting students whose identities helped create a robust and diverse student body. In a series of affirmative defenses, they requested this case be dismissed because the legal questions had already been settled by the Supreme Court and, since that decision, they had acted in reliance on that court’s ruling (under collateral estoppel). They also argued that the claims surrounding past admissions were now moot and that the court lacked subject matter jurisdiction due to sovereign and government immunity.

Once the complaint and response had been filed, the plaintiff moved to compel discovery and a protective order, which was granted. The plaintiff then asked for summary judgement and a permanent injunction against the university's race-aware admissions practice. A sealing order was issued on September 20, 2018. Ultimately, the court granted the defendant’s plea regarding subject matter jurisdiction and dismissed the case on December 28, 2018.

The plaintiff filed an appeal on January 25, 2019 in Texas's Third Court of Appeals. The case remains ongoing pending appeal.