"Look more like Texas"

Volokh, Eugene VOLOKH at mail.law.ucla.edu
Mon Jun 26 16:47:15 PDT 2000

        Can it really be the case that the interest in having an educational
institution "look more like Texas" -- that is to say, in having it better
mirror the racial breakdown of the state -- would justify a program that's
intentionally designed to serve that interest?

        Let me give a concrete example.  This year, UCLA's admits had the
following racial composition (note that these are admissions numbers, not
enrollment numbers, but I suspect that the enrollments won't be too far

        Asian                   41.3%
        White/other             35.5%
        Hispanic                11.1%
        Black                   3.0%
        American Indian 0.5%
        Decline to state        8.7%
        [Source:  City News Service, April 4, 2000.]

Here is what California "looked like" in mid-1998 (the most recent data I
could get from the Census Web site):

        Asian                   12.1%
        White                   50.5%
        White Hispanic  28.9% (the total Hispanic figure would be 31.0%,
which presumably includes some blacks, Asians, and American Indians)
        Black                   7.5%
        American Indian 0.9%
http://www.census.gov/population/estimates/state/srh/srhus98.txt .]

Let's say that UCLA set up a facially neutral mechanism that was nonetheless
intended to make the UCLA freshman class "look like California": that
                increased the fraction of blacks by 4.5% of the total,
                increased the fraction of American Indians by 0.4% of the
                increased the fraction of Hispanics by 17.8% to 19.9% of the
                increased the fraction of whites by 6.3% of the total
(assuming for convenience that all the "Decline to state" people are white),
                decreased the fraction of Asians by 29.2% of the total.

Would this sort of intentional attempt to get these particular racial
percentages -- and I'm perfectly willing to stipulate for purposes of this
hypo that the attempt is not the least bit based on any hatred or ill will
towards any racial group -- really trigger no Equal Protection Clause
scrutiny, on the ground that making UCLA, which "is a public institution
supported by all of the taxpayers of California . . . look more like
California" does not "have a discriminatory purpose"?

Hank Chambers writes:

> 3) Assume that the University of Texas Governing Board decided that
> because
> UT is a public institution supported by all of the taxpayers of Texas, UT
> should "look more like Texas" and that the easiest way to do that would be
> to go to the 10% plan.  Would such a plan be deemed to have a
> discriminatory
> purpose?  To say that it did have a discriminatory purpose seems strange
> because in recent history "discriminatory" has carried negative
> connotations.
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