It’s deja vu all over again for The University of Texas at Austin, facing a new lawsuit that challenges its race-based admissions policies. But the new legal strategy at play might alter the outcome.
This time around, the lawsuit challenges racial preferences in admissions under the Texas Constitution and state law, unlike the previous federal-law challenge in the high-profile case Fisher v. University of Texas at Austin.
In the first case, the university won a 2016 U.S. Supreme Court ruling that said a narrowly tailored raced-based admission policy was constitutional if it was necessary to achieve a diverse student body.
The new case, Students for Fair Admission v. University of Texas at Austin, filed in Travis County District Court, alleges that UT’s admissions policies intentionally discriminate against “disfavored racial groups” like whites and Asians. The plaintiff, a nonprofit called Students for Fair Admissions, alleged that racial preferences in admissions violate the Texas Constitution’s Equal Rights Amendment protections against discrimination and guarantee of equal protection, and a state law that prohibits government officers or employees from stopping someone from participating in a state program—including a university—because of a person’s race, religion, color, sex or national origin.
The new plaintiff might have better chances because the claims arise under Texas law, according to lawyers on both sides of the issue.
Houston solo practitioner Allan Van Fleet, who wrote an amicus brief that supported the university’s position in Fisher, said he feels that UT Austin still needs to consider race in admissions so it can have a diverse student body. But he admitted that this plaintiff’s legal strategy might work.
“The Texas Constitution and its equal protection clause—it differs enough from the federal constitution, that under Texas constitutional law, regardless of what the U.S. Supreme Court said in Fisher, that the Texas Constitution prevents UT or any state actor from discriminating, from considering race,” Van Fleet said.
Mark Pulliam, who is retired from a 30-year career as a Latham & Watkins partner and now works as a conservative writer and blogger, said he thinks raced-based admissions are an “abomination,” yet he does agree with Van Fleet’s assessment about the state law claims here.
“State law is equally important in Texas as the federal law. Eventually, this is going to work its way up to the Texas Supreme Court, and the lay of the land may very well be different,” said Pulliam, who’s also a plaintiff in a lawsuit that challenges the constitutionality of mandatory bar membership and dues in Texas.
Students for Fair Admissions has filed similar lawsuits against Harvard University and the University of North Carolina-Chapel Hill. The nonprofit’s president, Edward Blum, also directed the Project on Fair Representation, an Austin nonprofit that sponsored Abigail Fisher in the previous legal challenge.
“The Texas Constitution enshrines a color-blind vision of equality, which forbids universities to discriminate on the basis of race. We believe that most Texas judges and justices will agree with our interpretation of the Texas Constitution,” said Blum in a statement.
Students for Fair Admissions filed the same lawsuit against the university in 2017 and a district judge in late 2018 dismissed it because a standing member applied as a music major and took an audition rather than being subjected to UT’s holistic review process, which uses race as a factor.
In this second try, however, the lawsuit claims the school denied multiple members admission based on race.
University spokesman JB Bird said in a statement, “We remain confident in the lawfulness and constitutionality of UT Austin’s holistic admissions policy.”
Read the petition.