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What it means for Texas colleges if Trump targets affirmative action

There's not much room in federal law for the U.S. Department of Justice to target Texas schools for the use of affirmative action, but a lawsuit pending in state court could spell trouble for race-conscious admissions at the University of Texas at Austin.

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For about a year starting in June 2016, the practice of affirmative action in Texas university admissions seemed secure. 

The University of Texas at Austin won a U.S. Supreme Court case on the issue — for the second time. And UT-Austin officials said they were determined to continue to consider the race of applicants as a small factor in admissions decisions for the foreseeable future. 

But this summer, doubt has crept back in. On Tuesday, The New York Times broke the news that the U.S. Department of Justice under President Donald Trump plans to investigate and possibly sue universities that use affirmative action if its lawyers believe those policies unfairly discriminate against white or Asian students. And in June, the man behind the case that took UT-Austin to the Supreme Court filed another lawsuit alleging discrimination against white people at UT-Austin. This time, the case is in state court. 

The Department of Justice news stunned the world of higher education. Questions abound. Here's what we know now about what this means for Texas:

Not many schools in Texas use affirmative action

It's impossible to know at this point whether the Department of Justice will set its sights on any Texas schools. The New York Times reported that the department is still staffing up for the mission, and it doesn't appear to have specific plans or strategies set. But Texas doesn't seem like an easy target. Only one public university in Texas — UT-Austin  — considers the race of its applicants in freshman admissions. And except for Rice University and Southern Methodist University, most of the prominent private universities don't use it, either. 

UT-Austin policy has been a target in the past. But it seems relatively safe in this case. 

UT-Austin's use of affirmative action has been thoroughly vetted by the federal courts. Abigail Fisher, a white student from Sugar Land, sued UT-Austin in 2008, saying she was denied admission even though she felt there were minority candidates who were less qualified than her. The case reached the U.S. Supreme Court twice. Each time, the court upheld the practice of affirmative action.

In 2016, the court's majority opinion specifically found UT-Austin's policy constitutional. In order to mount a successful case against UT-Austin, the Justice Department would probably have to persuade the Supreme Court to reverse its recent ruling. 

"Right now, I think UT is very well insulated," said Mishell Kneeland, a former assistant attorney general in Texas who helped represent UT-Austin in the Fisher case.

Some Texas schools don't use affirmative action because of the Top 10 Percent Rule.

Why don't more Texas schools use affirmative action? Because the state has a unique method of increasing diversity at its schools. The origins of that method, known as the Top 10 Percent Rule, date back to another court decision from 1996.

That year, a U.S. appeals court ruled that UT-Austin's use of affirmative action in law school admissions was unconstitutional. That ruling was eventually overturned, but it was at first interpreted to mean that no public school in Texas could consider the race of its applicants. In the years before the ruling was overturned, black and Hispanic enrollment in top schools began to plummet. The Texas Legislature came up with the Top 10 Percent Rule as a fix. 

Under the rule, each public school is required to accept any student who graduated in the top 10 percent of his or her Texas high school's graduating class. The idea is that schools in Texas are fairly segregated by race. Thus, accepting the top students from suburban schools, inner city schools and schools in South Texas creates more diverse universities. 

Lawmakers and educators still fiercely debate how much the rule works and whether it's fair to students from more competitive high schools. But there is no question that many universities became more racially diverse after the law went into effect. And once affirmative action became allowable again, Texas A&M University decided it didn't need it. 

UT-Austin uses the Top 10 Percent Rule, but says it still needs affirmative action

The Top 10 Percent Rule still applies to UT-Austin, but in a slightly different way. UT-Austin is such a popular school for top students that it runs the risk having more top 10 percent students than it has room for. As a result, the Texas Legislature allows UT-Austin to cap its automatic enrollees at 75 percent of incoming Texans. The other 25 percent are admitted through a more holistic process. Race is one small factor that the university considers in that process. 

Despite that, UT-Austin admits a significantly higher share of black and Hispanic students through the Top 10 Percent Rule than it does from the holistic review process. 

UT-Austin's affirmative action policy could still be safe.

Affirmative action opponents might have lost at the federal level, but they're not giving up. In June, Edward Blum, the man who recruited Abigail Fisher to sue UT-Austin last decade, took his fight to state court. He created an organization, Students for Fair Admissions, that filed a new lawsuit targeting the policy. This one claims that affirmative action at UT-Austin violates state law. 

UT-Austin declined to comment for this article. But it is clearly frustrated by the case. In a legal filing on Monday, the university said Blum is trying to "re-package the same allegations and arguments that were unsuccessful in the prior suit."

"Having lost the legal arguments they asserted from 2008 through 2016, Blum and the Fishers now claim that this honorable Court should give them a new and different result," the filing said. "They apparently believe that their new second-choice, third-choice, and fourth-choice theories should be equally compelling to the unsuccessful arguments they pushed for eight years."

UT-Austin is making that argument to a district judge. But Blum seems to clearly have his sights set higher: The Texas Supreme Court. That body is considerably more conservative than the U.S. Supreme Court and could be more receptive to Blum's argument. 

"I do think there is more vulnerability there," said Kneeland, who nonetheless called UT-Austin's affirmative action policy "terrific."

The plaintiffs in the suit argue that UT-Austin's policy violates the Texas Constitution and the Texas Civil Practice and Remedies Code, which says that a state employee cannot "refuse to permit [a] person to participate" in a state program because of that person's race. 

That statute, Kneeland said, "hasn't been interpreted in this context and so it is a little bit of an open question."

Shannon Najmabadi contributed to this report. 

Disclosure: The University of Texas at Austin, Rice University, Southern Methodist University and Texas A&M University have been financial supporters of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

Correction: Based on incorrect information from a university-produced report, an earlier version of this story said that Midwestern State University considers the race of its applicants during the admissions process. A spokeswoman said Wednesday that the school does not use race as a factor. 

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2017/08/02/trump-administration-might-target-affirmative-action-what-does-mean-te/.

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