In striking down affirmative action programs in universities across the country, Chief Justice John G. Roberts argued that the programs “unavoidably employ race in a negative manner, [and] involve racial stereotyping.” Justice Sonia Sotomayor wrote in dissent that the ban decision cements “a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”
A New York Times Editorial explored the two opposing arguments and concluded: “It is nice to imagine an America where all people are treated the same, regardless of the color of their skin, but that is not the nation we live in today or ever have lived in.” Justice Kentanji Brown Jackson’s dissent challenged the idea that we do not need affirmative action because America has achieved a colorblind status. She wrote: “Our country has never been colorblind.” She added, “Deeming race irrelevant in law does not make it so in life.” [NYT Editorial, July 2, 2023]. The Supreme Court’s decision to ban Affirmation Action in colleges came a few days after the announcement by the U.S. Census that the Latino population of Texas was now officially the largest population group in the state. Texas’s state demographer Dr. Lloyd Potter commented that Hispanic Texans now make up 40.2% of the state’s population, edging out non-Hispanic white Texans, who make up 39.8%.” [Texas Standard]
This demographic change is significant because it has been 193 years since Latinos have been the majority population in Texas. Historians
estimate that the Latino population stood at 5,000 in 1830. Following the Mexican gift of six million acres to the Stephen F. Austin colony in the mid-1820s, the non-Hispanic population of Texas expanded to more than 30,000 by 1835. Today, as the largest minority, and historically underrepresented in higher education, Latinos face many challenges.
In light of the Supreme Court decision on affirmative action, it is notable that there were also significant increases in the Asian and Black populations of Texas. The population changes between 2021 and 2022 showed that the Texas Asian population grew at a rate of about 5.5%, whereas the non-Hispanic white population only grew 0.3%, The Asian population grew at a rate of more than twice that of Hispanics. The Hispanic Texas population increased by 2.6 percent. To the surprise of
many, Potter said: “We have the largest African-American population compared to any other state in the union.”
I attended UT-Austin during the mid-1960s, an era when the campus made a transition from eight decades of segregation to an era of greater equality and inclusion. I started at UT-Austin in 1962, seven years after the first Blacks were admitted in 1955 following the Brown vs. Board of Education decision of 1954 which struck down separate but equal education policy. As a track scholarship athlete, I lived in Moore-Hill, one of the few fully air-conditioned dormitories on campus. At the time, a few Blacks attended UT-Austin, but none were on athletic scholarships.
In 1962, I was the only Latino among the 400 students in the dorm and the only non-Anglo on an athletic scholarship. There were no Blacks on the UT football team until 1970. The strict application of housing segregation denied Black students access to any of the campus
dormitories or dining facilities. With the passage of the Civil Rights Act of 1965, UT-Austin finally desegregated its dorms and dining facilities. During my senior year in 1966, the entire Moore-Hill dorm had only one Black student, and he lived next door to me. That fall, hooded members of the Klu Klux Klan marched through Austin to the State Capitol.
After graduation from UT-Austin, my wife Harriett and I left for California to teach and pursue advanced degrees. While studying for my Ph.D in History at UCLA, I worked with Upward Bound at Occidental College teaching and mentoring Latino students from East Los Angeles and Black students from Compton. In 1980 my wife Harriett and our two
children returned to UT-Austin. I accepted a tenured job in the UT History Department where I taught Urban History, Southwest History, and Civil Rights History for nearly two decades.
In the fall of 1992, Cheryl Hopwood sued UT-Austin after being denied admission to the UT Law School. I had just begun a new post in the UT administration as Vice Provost for Undergraduate Studies. I had experience as an expert witness in a discrimination case in federal court in California; thus I was chosen to testify in the Hopwood case on behalf of the University of Texas defense team. Cheryl Hopwood claimed that her denial to the UT Law School had violated her equal protection rights.
I testified before U.S. District Judge Sam Sparks’ court in April of 1994 on the history of discrimination in Texas and in particular at UT-Austin.
UT-Austin lawyers acknowledged what every legal scholar knew: Texas and every Texas institution of higher education, with the exception of the Historically Black colleges, had denied Blacks admission for nearly l00 years. The UT-Austin affirmative action plan was an effort to remedy years of exclusion. My experiences as an undergraduate student at UT-Austin during the segregation era gave me insights as an expert witness.
Judge Sparks ruled in UT-Austin’s favor noting that “while it was regrettable that affirmative action programs are still needed in our society, they were still a necessity until society could overcome its legacy of institutional racism.” The Fifth Court of Appeals reversed the Sparks ruling and found in favor of Hopwood holding that the UT-Austin Law School could not use race as a factor in deciding which students to admit. UT-Austin appealed the case to the U.S. Supreme Court which declined to review the case, and the Hopwood decision became the final law with respect to the use of race in admissions in Louisiana, Mississippi, and Texas, the three states over which the Fifth Circuit has jurisdiction.
I left UT-Austin in 1999 to become president of The University of Texas-San Antonio where I served until 2017. [I am happily retired]. During my years at UTSA, we increased the enrollment of Latino, Black, and Asian students, three groups that had little presence in many Texas universities before affirmative action. UTSA was not a highly selective university, and many of our students came from San Antonio, a
community that was 63.1 percent Latino, 2.7 percent Asian, and 7.1 percent Black. [Currently, UTSA admits 90 percent of its applicants]. With the recent Supreme Court ban of affirmative action, I decided to review how my former campus, UT-Austin, had fared in sustaining its diverse undergraduate enrollment. According to the Texas Tribune, in 2020 UT-Austin’s freshman class was 32% white and 31% Hispanic. Black students made up 7% of the freshman class at UT-Austin that year. The Tribune did not cite enrollment numbers for Asian students, but other sources show Asians at 20.2% of the undergraduate students at UT-Austin currently.
The San Antonio Express-News writer Samantha Ketterer reported that the affirmative action ban will result in “undoing a policy that selective
schools such as the University of Texas at Austin have relied on for decades to increase the racial diversity of their admitted classes.” That is not necessarily so. UT-Austin is a very selective institution, and few campuses in the top-ranked 100 U.S. universities enroll more Latinos. However, UT-Austin largely employs the Top Ten Percent Plan to maintain diversity, which has proven to be an excellent alternative to the use of affirmative action.
The UT-Austin Top Ten Percent enrollment plan may well serve as a model for other states wishing to maintain diversity without affirmative action. The policy is simple: students who graduate in the top ten percent of their high school class are admitted to UT-Austin, regardless of SAT test scores or letters. Ironically, it is Texas’s well-entrenched but unofficial segregation that allows the Top Ten Percent Plan to work. The high schools of South Texas are largely Latino, and Latino and Black students are the majority in numerous schools in El Paso, San Antonio, Houston, and Dallas. Due to a significant overall increase in UT-Austin enrollment, [currently at 52,384 students] the university now admits only the Top Six Percent of high school students.
A diverse student body is a worthy goal. Diversity, Justice Jackson wrote, means that “students of every race will come to have a greater appreciation and understanding of civic virtues, democratic values, and our country’s commitment to equality.” Darren Walker, President of the Ford Foundation, wrote on July 4th that “Study after study demonstrates that across organizations, diversity enhances critical thinking, creativity, and collaboration, as well as productivity, profitability, and performance.
It is a national tragedy that diversity is now a contested issue rather than a common interest.” [NY Times 7/4/23]