A New Weapon Against Racial Preferences in College Admissions
An Anonymous Complaint Can Trigger Ed Dept to Stop Affirmative Action
The filing of a complaint alleging noncompliance with Title IX, which prohibits discrimination on the basis of race, triggered a formal investigation by the Office for Civil Rights of the Department of Education [EdDept] which forced Texas Tech University Health Sciences Center [TT] to agree to cease considering race. As a result of the investigation, the entire Texas Tech University System, including its undergraduate program, discontinued its use of affirmative action.
While the EdDept did not itself rule that race can never be considered, it did determine that the school "did not clearly document . . . whether its use of race-neutral alternative measures were sufficient, standing alone, to obtain the educational benefits that flow from student body diversity."
More specifically it said that the policy "may not be narrowly tailored," may not have been "subjected to appropriate periodic review" as required by law, and that it had not clearly documented or explained why race-neutral alternatives could not work.
According to the agreement, TT can consider race only if it "provides a reasoned, principled explanation for its decision and identifies concrete and precise goals." It must also show that race-neutral alternatives would not work, and that "no undue burden is imposed on applicants of any racial groups."
But TT, like many other universities, may not be able to demonstrate why race-neutral admissions policies don't work, and make the additional showings required by the EdDept, especially since so many medical schools and entire universities have abandoned racial preferences and continue to function successfully.
Alternatively, universities may simply find it too costly or burdensome to develop and provide this proof, and that it is easier to simply stop using race as a factor in admissions decisions and thereby avoid such complaints and resulting investigations, says public interest law professor John Banzhaf.
This is likely to be similar to the way many employers, rather than trying to prove that they did not discriminate on the basis of race, or document that the screening tests they used in which minorities often did poorly were nevertheless fair and appropriate, simply hired more minorities to meet whatever standards seemed to be appropriate, he says.
So students who wish to end racial preferences at a school may wish to consider filing a complaint, anonymously or otherwise, with the Office for Civil Rights, Department of Education, requesting an investigation to determine if the institution is not complying with Title IX (42 U.S.C. §§ 2000d et seq.) and its implementing regulation (34 C.F.R. Part 100), by not subjecting its race-conscious admissions policy to appropriate periodic review, and being able to prove that a race-neutral admissions policy would not work.
Prof. Banzhaf has filed numerous successful legal complaints which have led to free broadcast time for antismoking messages, a ban on cigarette commercials, the admission of women to formerly all-male state colleges and all-male private clubs, bans of ladies nights, and many other victories.
Banzhaf says the TT agreement shows that EdDept is finally willing to vigorously enforce Supreme Court requirements that colleges must first carefully consider race-neutral alternatives to affirmative action plans, and then periodically review whether racial preferences are really necessary.
Thus it is likely to take seriously, if not even welcome, more complaints suggesting violations of Title IX, he suggests.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418