Affirmative action in Texas

---

On June 29, 2023, the Supreme Court reversed lower court decisions in Students for Fair Admissions, Inc. v. President & Fellows of Harvard and Students for Fair Admissions, Inc. v. University of North Carolina, effectively ending the use of affirmative action in college admissions. This article does not receive scheduled updates. If you have any questions or comments, contact us.

---

Affirmative action in Texas refers to the steps taken by employers and universities in Texas to increase the proportions of historically disadvantaged minority groups at those institutions. Historically, affirmative action nationwide has taken many different forms, such as strict quotas, extra outreach efforts, and racial and gender preferences. However, racial quotas in university admissions were banned in a 1978 United States Supreme Court case, Regents of the University of California v. Bakke.

On June 29, 2023, the Supreme Court reversed lower court decisions in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, effectively ending the use of affirmative action in college admissions.

As of March 2015, 109 out of 577 public four-year universities across the country reported that they considered race in admissions. This practice has been banned in eight states. Meanwhile, 28 states require affirmative action plans in either public employment or apprenticeships. Affirmative action programs that grant racial preferences have come under scrutiny in the courts for potentially violating the Equal Protection Clause of the Fourteenth Amendment and Title VII of the Civil Rights Act.

The following information details the use of affirmative action in universities and employment in Texas, as well as notable court cases originating in the state.

HIGHLIGHTS

In Texas, two public universities reported considering race in admissions as of March 2015.

Texas has enacted three laws regarding affirmative action in employment.

The effects of affirmative action policies are contested. Proponents argue that affirmative action diversifies selective institutions and provides more opportunities to minorities. Opponents argue that implementing policies that favor some groups requires discrimination against others and that these policiesmay harm individuals they are meant to help.

Background

The first reference to affirmative action was made by President John F. Kennedy (D) in 1961 in an executive order directing government contractors to take "affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." While there had previously been efforts by the federal government to end racial discrimination, the order marked the first instance of an active approach to promoting equal opportunity.

Lyndon Johnson signing the Civil Rights Act, July 2, 1964

As the Civil Rights Movement grew, the federal government took on an increasing role in preventing discrimination and bolstering minority numbers in workplaces and universities. President Lyndon Johnson (D) signed the Civil Rights Act of 1964, a landmark piece of legislation that prohibited discrimination against any individual based on race, color, religion, sex, or national origin. However, some still felt that preventing discrimination was not enough, so President Johnson issued an executive order that created the means to enforce affirmative action policies for the first time. Of their own initiative, many colleges and universities nationwide also adopted affirmative action policies to increase minority enrollment.

The use of affirmative action programs was initially intended to be temporary. However, over time the goals of affirmative action policies shifted from equality of opportunity to the achievement of equal representation and outcomes for minorities at all levels of society, a more ambiguous target. Furthermore, lawsuits have been brought against institutions utilizing affirmative action policies, citing violations of the Equal Protection Clause of the Fourteenth Amendment and Titles VI and VII of the Civil Rights Act. In Regents of the University of California v. Bakke, the Supreme Court ruled that promoting diversity, rather than compensating for historical injustices, is the constitutional goal of affirmative action. In its 2013 ruling on affirmative action in Fisher v. University of Texas, the court also placed the burden on universities to prove that no viable race-neutral alternatives exist when they use racial preferences in admissions to increase diversity.

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, the Supreme Court effectively ended race-based considerations in college admissions in a June 29, 2023, decision. The ruling explicitly allowed national service academies to continue considering race as a factor in admissions for reasons of national security.

Key terms

The following terms are helpful in understanding affirmative action policy:

• Discrimination refers to the unequal treatment of some individuals or groups based on federally-protected traits, such as age, race/ethnicity and gender.
• Preferential treatment occurs when an applicant is more likely to be selected than another applicant with similar or better qualifications due to other factors, such as race and ethnicity.
• Reverse discrimination is, according to Dictionary.com, unequal treatment or discrimination based on protected traits of "members of majority groups resulting from preferential policies" favoring historically disadvantaged groups, with the intent of remedying past societal discrimination.
• Equal employment opportunity is a commitment employers make to refrain from employment practices that are discriminatory, either directly (disparate treatment) or indirectly (disparate impact). According to Study.com, an equal employment opportunity policy is intended to ensure that "certain classes of people who have been discriminated against in the past are not subjected to adverse treatment" based on protected traits.
• Diversity means the representation of individuals of a variety of backgrounds in terms of characteristics such as national origin, race and ethnicity, gender and socioeconomic status.
• The mismatch effect refers to the theory that when an elite school extends a large preference to a student due to his race, athletic ability or connection to alumni, that student is less prepared for the rigor of the classes and suffers academically, though that student would perhaps thrive at a somewhat less elite school.
• Racial quotas are hiring or admissions policies requiring that a specified number or percentage of minority group members be hired or admitted. In 1978, the United States Supreme Court outlawed the use of strict racial quotas.
• Ratchet effect/cascade effect refers to a phenomenon in which actors do not have an incentive to improve a situation even if they easily could.

University admissions

See also: Higher education in Texas

Affirmative action in university admissions is a separate matter from affirmative action in employment that operates under different rules and regulations. Federal law requires government contractors and other departments and agencies receiving federal funding to develop and implement affirmative action plans for the hiring process. Public colleges and universities are considered federal contractors and must utilize affirmative action in their employment practices. However, many private colleges and universities across the country have also implemented similar measures in their admissions processes. These actions are typically voluntary, although a handful of states have adopted rules that require state universities to take affirmative action in admissions.

Affirmative action admissions programs were undertaken by public and private universities alike, beginning in the late 1960s and 1970s. Some universities initially established quotas in order to achieve a demographically diverse student body; these quotas were outlawed by the United States Supreme Court in Regents of the University of California v. Bakke in 1978. Today, a common form of affirmative action in college admissions is that of racial preferences. A preference occurs when a group of applicants is more likely to be admitted than other applicants with similar or better qualifications due to other factors, such as race or ethnicity. Preferences are also sometimes extended towards women, athletes, and children of alumni. The use of racial preferences may be related to college selectivity: scholars such as law professor Richard Sander have found that preferences are strongest at elite institutions.

Eight states have enacted laws banning the consideration of race in university admissions. As of March 2015, Texas was not one of these states. Of 36 public four-year universities in Texas, two reported considering race in admissions, as indicated in the chart below.

Consideration of race at public four-year universities in Texas
School	Race/Ethnicity is...				School selectivity*
	Very important	Important	Considered	Not considered
Angelo State University					Less selective
Lamar University					Less selective
Midwestern State University					Somewhat selective
Prairie View A & M University					Very selective
Sam Houston State University					Somewhat selective
Stephen F. Austin State University					Somewhat selective
Sul Ross State University					Less selective
Tarleton State University					Somewhat selective
Texas A & M International University					N/A
Texas A & M University					Somewhat selective
Texas A & M University-Commerce					Very selective
Texas A & M University-Corpus Christi					Less selective
Texas A&M University-Galveston					Somewhat selective
Texas A & M University-Kingsville					Less selective
Texas A & M University-Texarkana	N/A				Very selective
Texas Southern University					Somewhat selective
Texas State University					Somewhat selective
Texas Tech University					Somewhat selective
Texas Tech University Health Sciences Center	N/A				N/A
Texas Woman's University					Less selective
University of Houston					Somewhat selective
University of Houston-Clear Lake					N/A
University of Houston-Downtown					Less selective
University of Houston-Victoria					Somewhat selective
University of North Texas					Somewhat selective
University of Texas at Arlington					Somewhat selective
University of Texas at Austin					Very selective
University of Texas at Dallas					Somewhat selective
University of Texas at El Paso					Less selective
University of Texas at San Antonio					Less selective
University of Texas at Tyler					Less selective
University of Texas Health Science Center at Houston	N/A				N/A
University of Texas Medical Branch	N/A				N/A
University of Texas of the Permian Basin					Less selective
University of Texas-Pan American					Somewhat selective
West Texas A & M University					Somewhat selective
Sources: The College Board, "Big Future," accessed March 30, 2015 CollegeData, "College 411," accessed March 30, 2015 *Note: This scale of college selectivity comes from The College Board and is measured as follows: Most selective, less than 25 percent admitted; Very selective, 25 percent to 50 percent admitted; Somewhat selective, 50 percent to 75 percent admitted; Less selective, more than 75 percent admitted; Open admission, all or most admitted.

About the data

Information on which colleges consider race in admissions came from individual college profiles provided by two websites that aim to assist students in choosing a college: The College Board and CollegeData. Such information was reported to The College Board by the colleges themselves. Note that schools may have updated their policies since reporting them. To see the data: College Board: Click the link to the college's profile provided in the table below. Click "Applying" on the side menu and scroll down. Listed will be several criteria of admission into the college, separated by importance. If Race/Ethnicity is not listed, it was not reported as considered by the college's admissions officers. CollegeData: Click the link to the college's profile provided in the table below. Scroll down to the section titled "Selection of Students" to see a chart of admission criteria ranked from "Very Important" to "Not Considered." Click for links to school profiles School School profiles School School profiles College Board College Data College Board College Data Angelo State University Link Link Lamar University Link Link Midwestern State University Link Link Prairie View A & M University Link Link Sam Houston State University Link Link Stephen F. Austin State University Link Link Sul Ross State University Link Link Tarleton State University Link Link Texas A & M International University Link Link Texas A & M University Link Link Texas A & M University-Commerce Link Link Texas A & M University-Corpus Christi Link Link Texas A&M University-Galveston Link Link Texas A & M University-Kingsville Link Link Texas A & M University-Texarkana Link Link Texas Southern University Link Link Texas State University Link Link Texas Tech University Link Link Texas Tech University Health Sciences Center Link N/A Texas Woman's University Link Link University of Houston Link Link University of Houston-Clear Lake Link Link University of Houston-Downtown Link Link University of Houston-Victoria Link Link University of North Texas Link Link University of Texas at Arlington Link Link University of Texas at Austin Link Link University of Texas at Dallas Link Link University of Texas at El Paso Link Link University of Texas at San Antonio Link Link University of Texas at Tyler Link Link University of Texas Health Science Center at Houston Link Link University of Texas Medical Branch Link Link University of Texas of the Permian Basin Link Link University of Texas-Pan American Link Link West Texas A & M University Link Link

Employment

According to Business and Legal Resources, 28 states have passed their own laws requiring the development of affirmative action plans by state employers or apprenticeship programs. Affirmative action plans are management tools that outline efforts made to increase the proportions of minorities at a company or institution. Such plans typically contain the following:

• numerical analysis of the percentage of minorities employed versus the percentage in the labor pool,
• identification of areas where there is "underutilization" of minorities, or a discrepancy between the above percentages, and
• "specific practical steps" the employer will take to correct this discrepancy.

As of March 2015, Texas had passed three laws regarding affirmative action in employment. According to Texas law, it is not considered discrimination for any employer, public or private, to develop personnel policies geared toward workforce diversity. However, state law specifically clarifies that employers are not required to give preferential treatment to any person due to their "race, color, disability, religion, sex, national origin, or age" to narrow any gap between the percentage of such persons employed and the percentage in the general population. Furthermore, the law states that it is illegal to prevent any person admission into a training program based on these qualities, unless that program is being administered under an affirmative action plan required by federal law.

See statute: Labor Code Sec. 21.054. Admission or Participation in Training Program

See statute: Labor Code Sec. 21.113. Imbalance plan not required

See statute: Labor Code Sec. 21.121. Work Force Diversity Programs

Texas also has a nondiscrimination law, which identifies the following as protected traits in addition to those protected by federal law:

“

Race Color National origin Religion Sex (including pregnancy, childbirth, and related medical conditions) Disability: physical or mental Age (40 and older) Genetic information

”

The state's nondiscrimination law applies to employers with at least 15 employees and is enforced by the Civil Rights Division of the Texas Workforce Commission.

Federal requirements

Federal contractors and agencies in Texas that receive funding from the United States government are subject to federal law that requires them to adopt affirmative action plans.

Additionally, the following federal laws may apply to any company that meets certain conditions:

• Employers with at least four employees must adhere to the Immigration Reform and Control Act.
• Employers with at least 15 employees must adhere to Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.
• Employers with at least 20 employees must adhere to the Age Discrimination in Employment Act.
• Employers with any number of employees must adhere to the Equal Pay Act.

Federal nondiscrimination and affirmative action laws in Texas are enforced by the Equal Employment Opportunity Commission.

Court cases

Hopwood v. University of Texas Law School

In 1992, Cheryl Hopwood, a white female, applied to the University of Texas Law School and was subsequently rejected, despite her high grades and test scores. She filed a lawsuit against the school, claiming that without its affirmative action program that admitted minorities with lower credentials, she would have been admitted. The law school did not deny that its admissions policy set preferences for minority applicants, and acknowledged that "if some minority applicants were preferentially admitted on the basis of race, an equal number of white applicants were denied admission on the basis of race." However, the university asserted that its consideration of race was legal due to the compelling state interest in diversity and remedying past discrimination.

The United States District Court for the Western District of Texas ruled that the law school's consideration of race was constitutional, though it struck down its system of utilizing two separate admissions committees for minority applications and non-minority applications. Hopwood appealed to the Fifth Circuit Court of Appeals, which issued its judgment in 1996. The court of appeals reversed the district court's opinion, deciding in favor of Hopwood. It ruled that the law school could only consider race to alleviate past discrimination at its specific institution, rather than at elementary, secondary and undergraduate institutions. Furthermore, it stated that continued efforts to desegregate the postsecondary institutions in Texas were irrelevant and unconstitutional, thus rendering the consideration of race at the law school unlawful. Most importantly, it rejected the precedent set by the United States Supreme Court in Regents of the University of California v. Bakke by stating that diversity was not a legitimate goal of affirmative action programs.

The law school appealed to the Supreme Court, which declined to hear the case. As a result, all public universities in Texas ended the practice of considering race in admissions for several years beginning in 1997. The ruling also affected affirmative action admissions in Louisiana and Mississippi, two other states covered by the Fifth Circuit. In the place of race-conscious policies, Texas enacted the Top 10 Percent plan, which guaranteed admission into one of the state's universities to high school seniors finishing in the top 10 percent of their class. In 2003, the decision in Hopwood was invalidated by Supreme Court decisions in Grutter v. Bollinger and Gratz v. Bollinger.

Fisher v. University of Texas

University of Texas at Austin

See also: Fisher v. University of Texas

After Hopwood was reversed in 2003 by Grutter v. Bollinger, the University of Texas at Austin (UT-Austin) revised its admissions policy. It used the Top 10 Percent plan to fill 75 percent of the open spots for its entering freshman classes, undertaking a traditional admissions process for the remaining 25 percent. Under this process, the university once again considered race in its admissions.

Abigail Fisher was a white woman who fell just short of being admitted to UT-Austin under the Top 10 Percent plan, and was denied admission under the school's competitive admissions policy. Fisher sued, claiming that the university's consideration of race violated her rights under the Equal Protection Clause of the Fourteenth Amendment. The university defended its consideration of race as narrowly tailored according to judicial standards and necessary for campus diversity.

The district court found in favor of the university, and the Fifth Circuit Court of Appeals affirmed. Fisher further appealed to the United States Supreme Court, which agreed to hear oral arguments beginning on October 10, 2012. The Supreme Court did not strike down the university's consideration of race. Instead, it found faults in the decision of the Fifth Circuit Court of Appeals and vacated the lower court's opinion. The Supreme Court determined that the circuit court had not sufficiently held the policies of the University of Texas to a standard of strict scrutiny, instead taking the university at its word that its consideration of race was legal. The Supreme Court sent the case back to the lower court with instructions to more closely examine the admissions policies of UT-Austin.

The Fifth Circuit Court of Appeals ultimately upheld the admissions policies of the UT-Austin. On February 10, 2015, the nonprofit legal defense foundation called Project on Fair Representation filed an appeal of the most recent ruling by the Fifth Circuit Court of Appeals to the U.S. Supreme Court on behalf of Abigail Fisher in Fisher v. Univ. of Texas (Fisher II).

Public opinion

National public opinion polls on affirmative action have yielded mixed results over the past few years. Results found by researchers seem to depend largely on how the question is worded. In particular, support drops considerably when the word "preferences" is included in the question. Supporters of affirmative action are more likely to do so to increase diversity rather than compensate for past injustice.

Opinions also change when the question refers to college admissions specifically, and support and opposition are somewhat divided on racial lines, with black Americans being far more likely to favor affirmative action. In general, support for affirmative action has dropped since its peak in the early 1990s, when a poll by NBC News/Wall Street Journal found that 61 percent of Americans thought that affirmative action policies were still needed, compared to 45 percent in June 2013.

Support

Common reasons stated for supporting affirmative action include the following:

• Diversity is valuable for any workplace or college campus.
• Minority enrollment in college would fall dramatically without affirmative action.
• Affirmative action provides the extra push to disadvantaged students that is needed to succeed.
• By providing minorities with new opportunities, affirmative action may introduce them to other interests they would not have discovered otherwise.
• Affirmative action is necessary to break stereotypes.
• Affirmative action compensates for past injustices.

Opposition

Common arguments stated against affirmative action include the following:

• Affirmative action policies have caused "reverse discrimination" against whites.
• According to the Equal Protection Clause of the Fourteenth Amendment, affirmative action is unconstitutional.
• Since standards are lowered by preferential treatment, minorities only aim for those lower standards.
• Affirmative action causes a "mismatch effect" of underqualified students, leading to their failure at elite schools.
• Affirmative action is demeaning and condescending to minority achievement.
• It is too difficult to end affirmative action policies after they have been enacted, even when discrimination is no longer an issue.

Agencies

The Equal Employment Opportunity Commission (EEOC) is "responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information." These federal laws typically apply to workplaces with 15 or more employees. The EEOC operates field offices in 15 districts. Texas is served primarily by the Houston and Dallas District Offices. See the table below for further information about EEOC field offices serving Texas.

EEOC field offices serving Texas
Office	Location	Website
Houston District Office	Houston, Texas	Link
Dallas District Office	Dallas, Texas	Link
San Antonio Field Office	San Antonio, Texas	Link
El Paso Area Office	El Paso, Texas	Link

In addition, states and localities may have their own anti-discrimination laws. Separate agencies, designated by the EEOC as Fair Employment Practices Agencies, are responsible for enforcing these laws. In Texas, the Texas Workforce Commission, Civil Rights Division, is a designated Fair Employment Practices Agency. See the table below for further information about this office.

Fair Employment Practices Agencies in Texas
Office	Phone number	Website
Texas Workforce Commission, Civil Rights Division	(888) 452-4778	Link

Affirmative action and anti-discrimination legislation

The following is a list of recent affirmative action and anti-discrimination bills that have been introduced in or passed by the Texas state legislature. To learn more about each of these bills, click the bill title. This information is provided by BillTrack50 and LegiScan.

Note: Due to the nature of the sorting process used to generate this list, some results may not be relevant to the topic. If no bills are displayed below, no legislation pertaining to this topic has been introduced in the legislature recently.

See also

• Affirmative action
• Affirmative action on the ballot
• Higher education in Texas
• Fourteenth Amendment
• Civil Liberties Policy

External links

• Texas Workforce Commission
• Equal Employment Opportunity Commission