Is the University of Texas engaging in unconstitutional racial balancing?

In Grutter v. Bollinger, the Supreme Court permitted the consideration of race in college admissions for a limited purpose of securing the benefits of a diverse student body. The Court reasoned that a diverse student body helps prepare students for “an increasingly diverse workforce and society, and better prepares them as professionals.” Furthermore, in Grutter, the Court further observed that the University of Michigan Law School only sought to use racial preferences to reach a “critical mass” of minority students. Indeed, the Court has consistently rejected attempts to racially balance and to establish racial quotas. Yet, recent historical demographics from Texas suggest that the University of Texas’s (UT) admissions policy — which is before the Supreme Court this term — is an attempt to racially balance the student body.

UT’s admissions policy grants preferential racial treatment to African-Americans and Hispanics. For example, in Fall 2010, 23.1% of the incoming class at UT was Hispanic while 17.3% of the incoming class was Asian. If attaining a “critical mass” of minority students is the goal of UT’s policy, how could Hispanic students be preferred over Asian students? If there were enough Asian students to create a racially diverse classroom, there should have been enough Hispanic students to do the same. Hispanic students should not have been receiving racial preferences if UT’s policy was designed solely to achieve a critical mass of students of different races.

Thinking of the numbers one level deeper, it is troublesome to consider what UT might be doing. Using demographic numbers from the 2010 Census, Asians were over represented, while Hispanics were underrepresented at UT. In 2010, the percentage of Asians and Hispanics in Texas was 4% and 38% respectively. The likely answer is that UT’s policy continues to offer racial preferences to Hispanic students because there are not enough Hispanic students do not make up the same proportion as they do in the state. And Asian students don’t get racial preferences because, well, they met their quota. Such racial balancing is plainly unconstitutional.

UT and defenders of race-based affirmative action programs may try to explain this statistical oddity away. After Fisher I, however, the Supreme Court needs to critically analyze the facts and evidence presented. The Court should be skeptical about the University’s justification because of the school’s history of racial preference. It is UT’s burden to show that their use of race is constitutionally permissible.