The Diversity Dilemma: Navigating Senate Bill 17’s Impact on Faculty Hiring in Texas Public Universities

I. Introduction

“I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone.”

—Justice Thomas^[1]

In April 2023, the Texas Senate approved Senate Bill 17 (Bill) along party lines in a 19 to 12 vote.^[2] The Bill requires Texas universities to close diversity, equity, and inclusion offices (DE&I)^[3]—which have arguably become a mainstay on campuses across the country as higher education institutions attempt to boost diversity and help students from all backgrounds succeed.^[4] While the Bill is known for its requirement of closing DE&I offices across Texas,^[5] this Comment focuses on the Bill’s restrictions which prevent public universities in Texas from considering diversity-related materials in faculty hiring decisions. By analyzing and making sense of affirmative action in the United States, this Comment seeks to understand the extent to which the Supreme Court’s precedent on affirmative action compels this specific requirement in the Bill, and whether the Bill goes beyond what current precedent dictates. Further, this Comment explores hypothetical scenarios that involve faculty hiring, the Bill’s propositions, and current Supreme Court precedent to understand the practical application, limits, and consequences of this Bill.

Part II analyzes the Supreme Court’s affirmative action precedent and the diversity rationale as justification for considering race in admissions decisions. Further, this part explores whether the holdings in Regents of the University of California v. Bakke,^[6] Grutter v. Bollinger^[7], and Gratz v. Bollinger^[8] extend to affirmative action in faculty hiring. Part III addresses the Supreme Court’s most recent stance on affirmative action by taking a closer look at the Court’s holdings in Students for Fair Admissions, Inc. v. President of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina.^[9] The objective of this part is to understand whether an entirely new affirmative action standard emerged from SFFA and, if not, whether SFFA changed anything from the standards constructed under Bakke, Grutter, and Gratz.

Part IV provides a detailed analysis of the Bill, examining both its structure and substance. This part focuses on two primary questions: (1) what does the Bill propose—specifically, what is it requiring public universities in Texas to do? and (2) how do the Bill’s provisions align with or challenge the Court’s rulings on affirmative action? The aim of this part is not only to clarify the Bill’s explicit content, but also to explore its implications for Texas universities, considering both its direct effects and its relationship to the Court’s current stance on affirmative action in higher education.

Part V is slightly interactive because it provides two hypothetical scenarios that involve faculty admissions in Texas higher education institutions. By means of the hypothetical scenarios, this part aims to explore the scope and potential consequences of the Bill. Ultimately, this part is meant to invoke questions, illustrate the potential circumstances related to faculty hiring, and consider how public universities in Texas may move forward and navigate those scenarios in light of the Bill. Lastly, Part VI asks whether we should—or should not—care, as a society, about the potential consequences that this Bill might create in college campuses across Texas.

II. How Did We Get Here?

A. Supreme Court Precedent on Affirmative Action

Understanding and disentangling affirmative action is a difficult feat, yet an important one. This Comment does not attempt to provide an exhaustive history of affirmative action in the United States; rather, the goal is to outline the development of affirmative action in higher education—and, more specifically, its evolution. To begin, although affirmative action can be a broad topic, it may also be divided into four separate—yet not necessarily mutually exclusive—justifications for its use. Affirmative action may be thought of as a means of (1) providing reparatory justice for past wrongs; (2) creating diversity; (3) fostering integration; and (4) combating racial prejudice.^[10] This Comment focuses on the second justification that treats affirmative action as a mechanism to create diversity.

Some argue that the so-called “diversity rationale” of affirmative action in higher education originates from the oral argument in DeFunis v. Odegaard,^[11] which took place a few years before Regents of the University of California v. Bakke was decided.^[12] The case in DeFunis involved the University of Washington School of Law’s affirmative action program.^[13] Although the Court dismissed the case, it attracted an amicus brief by Archibald Cox, a Harvard Law Professor.^[14] In his brief, cited as an appendix in Bakke, Cox established that the concept of diversity at Harvard had expanded from understanding diversity as merely the differences in a student’s geographic location, hobbies, and interests, to including differences in their race.^[15] Cox asserted that racial diversity played an important role in a university’s quality of education.^[16] In Cox’s own words: “a black student can usually bring something that a white person cannot offer.”^[17]

Building on the arguments presented in DeFunis, the concept of diversity in admissions decisions was further developed in Bakke—a case that involved the University of California at Davis Medical School’s admissions program.^[18] As part of the admissions process at University of California at Davis Medical School, a special committee reviewed minority applicants’ materials and recommended them for admission to fill reserved “special applicants” slots.^[19] The Court found that reserving seats for minority candidates was unconstitutional, but race could be used as a “plus” in evaluating a candidate.^[20] In other words, the Court established that diversity in higher education was a compelling interest but universities could not use quotas to achieve that interest.^[21] The question about whether Bakke’s holding extended to faculty hiring, however, remained unanswered by the Supreme Court.^[22] Notably, some lower courts have used the holding in Bakke to support the analysis of affirmative action as it relates to faculty hiring, as opposed to student admissions processes.^[23]

Twenty-five years after Bakke was decided, the Supreme Court addressed again the diversity rationale of affirmative action in college admissions in two cases: Gratz and Grutter.^[24] In Gratz, the Court held that the University of Michigan’s undergraduate admissions program was unconstitutional because it lacked “individualized consideration” to every applicant.^[25] Each application was evaluated on a point system.^[26] Applicants could receive points based on different criteria, including GPA, test scores, academic achievement, and leadership.^[27] An applicant was also entitled to receive a maximum of twenty points based on their membership to a minority group.^[28] Under this system, a nonminority applicant who had artistic talent that “rivaled that of Monet or Picasso” would receive “at most, five points,” while a minority applicant “would automatically receive 20 points for submitting an application.”^[29] The Court found this point allocation system problematic and held that, while under Bakke, race could be a “plus” factor in an applicant’s materials, race could not be a decisive factor in a student’s application.^[30]

In Grutter, the Supreme Court found the University of Michigan Law School’s admissions process constitutional.^[31] Michigan Law’s admissions program gave each applicant the opportunity to submit an assortment of different information, including diversity statements addressing how the applicant would contribute to the school’s environment.^[32] According to the law school, diversity did not only mean race; rather, the university broadened its meaning of diversity to include an applicant’s ability to speak other languages, overcome adversity, speak about their community service engagement, and their prior professional experiences.^[33] Rather than using a student’s racial background as a decisive factor, the University of Michigan Law School engaged in a holistic review of each applicant—considering all the different ways in which an applicant could contribute to the law school’s community.^[34]

Ultimately, the Court held in Bakke, Gratz, and Grutter that the Fourteenth Amendment does not prohibit a university’s admissions department from using race to further the compelling interest of creating a diverse student body.^[35] At the same time, the Court placed certain limitations on how universities could achieve this compelling interest. Using these three cases, the Court’s standard of affirmative action could be summarized in the following way: A university may not use a quota for minority applicants;^[36] further, race may be used as a “plus” factor in an applicant’s material,^[37] but race may not be a “decisive” factor to admit an otherwise minimally qualified candidate.^[38]

If one thinks that this standard for admissions is vague or lacks practical guidance for universities to follow, there are certainly other scholars who would agree. Professor Salib and Professor Krishnamurthi, for example, point out that Michigan Law’s admissions program in Grutter survived the Court’s scrutiny because the university essentially left no record of their admissions process.^[39] As a result, there were no “points, rubrics, or apples-to-apples comparisons” to determine whether race was considered—and how much it was considered—for admissions decisions.^[40] Without this information, the Court could not precisely know whether Michigan Law used race as a decisive factor or whether race was simply a “plus” factor in a holistic and individualized review process.^[41]

B. Faculty Hiring

Is the main takeaway that the more vague and obscure universities are in their admissions processes the likelier it is that universities will survive the Court’s scrutiny? Perhaps that is true; certainly, some scholars would agree.^[42] The answer, however, is likely more nuanced. Despite the standard for student admissions, uncertainty remains about what is allowed—or prohibited—when it comes to faculty hiring.^[43] In an attempt to answer whether the affirmative action standard of Bakke, Gratz, and Grutter extends to faculty hiring, Professor Paulsen presented an imaginary judicial opinion finding that a university’s preferential hiring regime based on race would violate the Constitution and that the governing precedent should be Croson—a Supreme Court case involving a government contracting program—instead of Bakke.^[44]

Paulsen’s imaginary case involves a plaintiff who applied to teach Civil Procedure at State Law School and was denied the position.^[45] The plaintiff sued the law school on the basis that the university denied him the role because of his race, in violation of the Fourteenth Amendment’s Equal Protection Clause.^[46] The plaintiff was a white male who graduated from a top law school, previously worked at the Department of Justice, and written academic articles.^[47] The record showed that the law school’s admissions process, much like Bakke’s, separated the minority from the nonminority applications and reserved certain available faculty spots to minority applicants.^[48] Those measures were part of the institution’s affirmative action policy designed to increase faculty diversity.^[49]

The imaginary court established that the defendants’ reliance on Bakke was problematic because (1) the decision in Croson displaced the holding in Bakke; (2) it was unclear whether the decision in Bakke was actually “the law” since a plurality, as opposed to a majority, decided the case; and (3) the defendants’ use of race in their faculty admissions decisions ran contrary to Bakke’s holding.^[50] The imaginary court’s third reason is the most persuasive because State Law School was in fact acting contrary to Bakke’s holding by placing the minority applicants’ materials in a separate pipeline and reserving spots for those candidates.^[51] The first and second reasons posed by the imaginary court, however, are unpersuasive because Bakke’s plurality—as opposed to majority decision—does not discredit its impact and relevance as valid precedent on affirmative action cases.^[52] Further, the argument that Bakke was overruled by Croson is not supported by the opinions in Grutter and Gratz, which use Bakke as the relevant precedent in affirmative action cases.^[53]

Unlike Professor Paulsen’s arguments against using Bakke as the governing standard for affirmative action in faculty hiring cases, this Comment uses Bakke and its progeny as the standard to examine affirmative action in faculty hiring. The use of this standard in faculty hiring is not a radical idea. In fact, it has been supported by several prominent law school professors who argue that the Supreme Court’s affirmative action rulings, such as Grutter, could be extended to faculty hiring.^[54] These professors contend that faculty recruitment occurs within an employment context that is “closely parallel [to] the higher education context,” and the Court could be compelled to use its affirmative action holdings as governing precedent.^[55] The remaining analysis of this Comment will follow this line of thought and use Bakke and its progeny as the applicable precedent and standard for faculty hiring.^[56]

III. Where We Currently Stand

In 2023, the Supreme Court issued its most recent decisions on affirmative action in SFFA v. Harvard College and SFFA v. University of North Carolina where the Court evaluated the constitutionality of these institutions’ undergraduate admissions processes.^[57] Starting with Harvard, the logistics are simple: every application was screened by a first reader who took an applicant’s race into account and who was tasked with assigning the applicant scores in six different categories.^[58] The application then proceeded to a subcommittee, which after review, directed the application to a final committee that ensured that the amount of racial minorities admitted were consistent year after year.^[59] The last stage in the admissions process, the “lop,” involved a list of potential admits that the committee reviewed before deciding who would be admitted and who would be denied.^[60]

For the University of North Carolina (UNC), each application was reviewed by a first reader who was tasked with making an admissions recommendation.^[61] Like Harvard’s admissions process, the UNC readers offered numerical ratings for categories including academic achievement, as well as the quality of the applicant’s essays and materials.^[62] The reader could offer an applicant a “plus” based on their race.^[63] After the first reader reviewed the application, the next stage in the process was the “school group review,” where they either granted or rejected admission to UNC and “[i]n making those decisions, the review committee . . . also consider[ed] the applicant’s race.”^[64]

Noting the logistics of the admissions decisions at both universities, the Court’s opinion in SFFA may be read under two separate lenses: (1) the Court upheld Bakke and its progeny, or (2) the Court overturned affirmative action completely, with the implication that Bakke and its progeny were overruled as well.

A. Alternative One: SFFA Upholds Affirmative Action Precedent

The first reading of the SFFA opinion involves thinking of the decision as supporting, rather than overturning, the Court’s precedent on affirmative action. To support this reading, there are three separate arguments the Court made. First, the Court established that Harvard and UNC failed to survive strict scrutiny because the universities’ student body goals—although “commendable”—were not “sufficiently coherent.”^[65] Harvard and UNC justified their interest in promoting student diversity as a means to “better educat[e] its students through diversity,” to “produc[e] new knowledge stemming from diverse outlooks,” and to “enhanc[e] appreciation, respect, and empathy.”^[66] The Court ultimately held that these justifications could not be subjected to judicial review due to their lack of coherency.^[67]

Second, the Court established that the admissions programs at both universities used race as a negative stereotype.^[68] From Bakke and its progeny, the Court held that race could be used as a “plus” factor in an applicant’s holistic and individualized admission decision, and barred the use of quotas for nonminority applicants.^[69] The Court established that Harvard and UNC provided students with “an inherent benefit in race qua race—in race for race’s sake.”^[70] In doing so, Harvard and UNC discounted the importance of other factors outside of race—an applicant’s age, economic status, and background, among others.^[71] Thus, by using race qua race, the Court held that Harvard and UNC violated the precedent established in Grutter because, rather than applying a holistic review process of each applicant, Harvard and UNC based their admissions decisions on the “pernicious stereotype that ‘a black student can usually bring something that a white person cannot offer.’”^[72]

Further, the results of Harvard’s admissions process show that between 2009 and 2018, the representation of Black, Hispanic, and Asian students barely varied from year to year.^[73] In Bakke, the Court established that using race as a quota was unconstitutional.^[74] Harvard ensured that the student body’s racial share remained consistent throughout the span of nine years. This use of race, the Court established, inevitably worked as a negative for other students who may not be admitted—or admitted less—than other students.^[75] UNC had a similar approach to race in which the university assessed how a certain group’s percentage enrollment compared to the group’s percentage within the state’s population.^[76] With these facts in mind, it could be argued that the Court did not overturn Bakke and its progeny. Rather, Harvard and UNC’s admissions processes—by virtue of measuring and tracking the number of minority students over the years—applied a quasi-racial quota, which goes contrary to the holding in Bakke.

The third reason why the Court found Harvard and UNC’s admissions methods unconstitutional was that, as the majority explained, Grutter established an end point to the use of race in admissions programs.^[77] The Court in SFFA asserted that neither Harvard nor UNC expressed an end point to their use of race in their admissions program.^[78] Rather, Harvard and UNC engaged in “periodic reviews,” to help them determine whether they still needed to use race in admissions decisions.^[79] The Court held that these periodic reviews were not permitted under Grutter, nor would they help in making “unconstitutional conduct constitutional.”^[80]

Thus, if one understands the SFFA decision as simply the Court upholding Bakke and its progeny, then the argument is that Harvard and UNC violated the affirmative action standard previously set by the Court because they (1) failed to demonstrate how the use of race was narrowly tailored to achieve diversity; (2) used race as a quota; and (3) did not establish and end point to the use of race in admissions decisions.^[81]

B. Alternative Two: SFFA Overrules Affirmative Action Precedent

As previously discussed, the affirmative action standard under Bakke, Gratz, and Grutter is clear: a university may not use race quotas, race may be used as a “plus” factor in an applicant’s material, but not as a decisive factor, and diversity in the student body is a compelling interest for a university.^[82] Other than Harvard and UNC potentially using race as a quota, there is a strong argument that the reasons why the Court found Harvard and UNC’s admissions methods unconstitutional are not elements established under the affirmative action standard supported by the Court’s precedent. In fact, Justice Sotomayor argues that in holding Harvard and UNC’s admissions methods unconstitutional, “[t]he Court simply move[d] the goalposts, upsetting settled expectations and throwing admissions programs nationwide into turmoil.”^[83] Perhaps the most interesting distinction between affirmative action precedent and the opinion in SFFA is that the Court found these universities’ justifications for their use of race in admissions decisions to be unpersuasive.^[84]

In past affirmative action cases, the Court recognized that the use of race in admissions decisions was justified because of the “educational benefits of a diverse student body.”^[85] Justice Thomas’s concurrence in SFFA, however, questions this reasoning by saying that the Court in Grutter failed to clearly explain the link between racial diversity and quality of education.^[86] Justice Thomas explains that Harvard’s justifications for considering race in admissions are “extremely vague and offer[] no indication that, for example, student test scores increased” as a result of the university’s efforts in fostering diversity.^[87] Further, he also emphasizes that “[w]ith nearly 50 years to develop their arguments, neither Harvard nor UNC—two of the foremost research institutions in the world—nor any of their amici can explain that critical link,” leaving the Court with vague and unmeasurable interests to suffice scrutiny.^[88]

Although the opinion in SFFA does not go all the way to say that student diversity is not a compelling interest, the opinion seems to ask for more specificity from universities in justifying why student diversity is needed. In other words, SFFA might have raised the bar for universities to be able to justify their efforts to create a diverse student body.^[89] After SFFA, it seems that universities across the country need to provide concrete and measurable benefits attained as a result of an institution’s racial diversity to survive the Court’s scrutiny. Discouragingly, Justice Thomas “highly doubt[s]” that any university will be able to satisfy this standard.^[90]

Further, revisiting the argument from Part II that the University of Michigan Law School’s admissions program in Grutter may have withstood the Court’s scrutiny due to the vagueness in its admissions process^[91]—Harvard and UNC applied similar processes as Michigan Law did in Grutter, yet Harvard and UNC failed to survive the Court’s scrutiny.^[92] To clarify this point, it is useful to compare the admissions systems at these universities. At Michigan Law, the school engaged in a “holistic” and “individualized” review of each applicant’s file, considering factors other than race and taking into account a student’s “personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute” to the school’s diversity.^[93]

At Harvard, an applicant’s materials were evaluated through six different categories, including “academic, extracurricular, athletic, school support, personal, and overall.”^[94] Much like Michigan Law in Grutter, Harvard in SFFA reviewed multiple factors other than race for each applicant’s materials.^[95] UNC’s review process was not much different either. At UNC, apart from race, reviewers considered an applicant’s “academic performance and rigor, standardized testing results, extracurricular involvement, essay quality, personal factors, and student background.”^[96] One might be left wondering: what exactly is so different between Michigan Law’s admission program in Grutter—which survived constitutional muster^[97]—and the admissions processes at Harvard and UNC? In other words, if Michigan Law’s admissions process is arguably very similar to Harvard and UNC’s, then it is safe to say that the opinion in SFFA overruled affirmative action precedent in its entirety because their processes were deemed unconstitutional by the Court.^[98]

The Court, however, establishes that SFFA does not prohibit universities from considering “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”^[99] Race, however, cannot be considered just for the sake of race; rather, “the student must be treated based on his or her experiences as an individual—not on the basis of race.”^[100] Notably, Justice Sotomayor considers this proposed framework—if one can even call it that—as “nothing but an attempt to put lipstick on a pig” because, she explains, a student’s racial identity informs, and is relevant to, a student’s life and experiences.^[101] After SFFA, it is safe to say that the Court leaves us in a Catch-22.

Ultimately, in reading the SFFA decision through two juxtaposing lenses, there is one important question left unanswered: practically speaking, how can universities consider race in admissions decisions today? In other words, if a person from the admissions team at Harvard, UNC, or any other university opens an application and reads an applicant’s materials, what can they consider and what should they set aside? On the one hand, Justice Thomas in SFFA takes issue with universities considering an applicant’s race for the sake of race. Justice Thomas fears that, by considering race for its own sake, applicants are minimized to the color of their skin, as opposed to the experiences, perspectives, and abilities that make them the people they are—outside of their race.^[102] On the other hand, Justice Sotomayor finds it extremely difficult to imagine a world in which a student’s life experiences may be disentangled from that student’s race.^[103]

What then, are the limits of this most recent Supreme Court opinion? How does it work in practice and how can universities truly understand a candidate for their own merits and experiences, without using race? The next parts of this Comment seek to address these questions through the lens of faculty hiring and the limitations that the Bill introduces to Texas public universities.

IV. A Closer Look at Senate Bill 17

A. The Bill’s Contents

In April 2023, the Texas Senate approved the Bill, a bill that was largely covered by the media for its primary focus on closing DE&I offices across Texas public universities.^[104] In response, a group of civil rights groups and other organizations expressed their concerns related to the Bill, noting that it would not only have “devastating” consequences for future “generations of Texans,” but it would also “undermine the ability of educators . . . to create a diverse and welcoming campus and threaten the quality of higher education in Texas as a whole.”^[105] These groups’ concerns, as stipulated in their joint condemnation, may be boiled down to one simple idea: DE&I offices strengthen diversity in universities, and diversity in universities impacts the quality of higher education—for the better.^[106] Therefore, closing these offices presents a risk to universities across the state.

At its core, the Bill does not only close DE&I offices across public universities in Texas—it expands further than that. Taking a bird’s-eye view of the Bill, it is roughly divided into four general parts. The first part defines DE&I.^[107] The second part sets the scope of the Bill and delineates the steps that universities need to take to comply with the Bill’s contents.^[108] The third part speaks to the Bill’s limits and the activities that are beyond its scope.^[109] The fourth part addresses enforcement and the consequences that a university may face with incompliance.^[110] The Bill defines a DE&I office as an office that (1) influences the university’s hiring and employment decisions “with respect to race, sex, color, or ethnicity”; (2) promotes preferential treatment on the basis of “race, color, or ethnicity”; (3) promotes policies and processes “in reference to race, color, or ethnicity”; and (4) leads trainings and other activities “in reference to race, color, ethnicity, gender identity, or sexual orientation.”^[111]

The Bill also limits what a Texas higher education institution may—or may not—do in relation to general DE&I efforts.^[112] The first subsection establishes that universities may no longer have a DE&I office.^[113] Relatedly, the second subsection notes that public universities in Texas may not hire an individual to perform the duties of a DE&I office.^[114] In sum, this part of the Bill outlaws DE&I offices at publicly funded universities in Texas irrespective of whether the office is an actual, physical office, or whether it is an employee who performs all of the tasks that pertain to a DE&I office. It is relevant to note that the Bill does not apply to universities or employees who apply for a grant or who seek to receive an accreditation.^[115] The Bill also exempts a university’s coursework, research, creative work, student organizations’ activities, and student admissions from its provisions.^[116]

Additionally, the Bill stipulates that universities may not give preference to an employment candidate “on the basis of race, sex, color, ethnicity, or national origin.”^[117] Further, the Bill delineates that a university may not require anyone to enroll in a DE&I training as a condition for “performing any institution function.”^[118] The primary focus of this Comment, however, is the Bill’s provision that prohibits universities from compelling or requiring “any person to provide a diversity, equity, and inclusion statement or give preferential consideration to any person based on the provision of a diversity, equity and inclusion statement.”^[119] To summarize, these subsections, as a whole, establish that a public university in Texas (1) may not compel someone to write a diversity statement; (2) may not give “preferential consideration”^[120] to someone who voluntarily provides a diversity statement; and (3) may not give a candidate preferential treatment on the basis of race and other factors like sex, national origin, and ethnicity.

B. The Bill and Affirmative Action Precedent

Proponents of the Bill argue that Texas universities improve not by hiring diverse faculty members, but by hiring “the best faculty based on merit and equal opportunity” and that the Bill will enhance a “merit-based approach” to faculty hiring that will allow universities in Texas to return to their “core mission” to “educate and innovate.”^[121] The Bill’s opponents, on the other hand, argue that the Bill will discourage certain students from attending public universities in Texas, will undermine faculty’s efforts of creating a welcoming atmosphere, and will ultimately affect students’ performance.^[122] Apart from deciphering which side of the argument is more meritorious, one interesting question emerges from this Bill, which is how the Bill interacts with the Supreme Court’s precedent on affirmative action, particularly the Court’s decision in SFFA.

The ambiguity in the Bill’s language regarding “diversity statements” and what universities must do with those materials requires close scrutiny because, depending on how it is interpreted and enforced, the Bill could either align with or diverge from the principles set forth in Bakke, Grutter, Gratz, and SFFA. The Bill’s provisions do not offer a clear delineation of the meaning behind “diversity statement,” nor of the steps a university should take in assessing a candidate’s application materials.^[123] Instead, the University of Texas (UT) published a working guidance establishing that a diversity statement is a statement of an applicant’s “commitment to (1) further[] diversity, equity, and inclusion based on race, color, ethnicity, national origin, sex, gender identity and/or sexual orientation,” or a statement that “(2) promot[es] differential treatment of or provid[es] special benefits to individuals based on their identification as a member of one or more of these classifications.”^[124] Under this guidance, a diversity statement is more than just an applicant mentioning their race because the context in which race is presented in the applicant’s statement matters.^[125]

Further, the guidance explains that if an applicant provides a diversity statement, then universities cannot give preferential treatment to the candidate.^[126] The guidance goes on to explain that if an applicant provides a diversity statement, “institutions should remove [the] . . . unsolicited DEI statements from an applicant’s application materials before the application is provided to the relevant search committees, admissions committees . . . and decisionmaker(s).”^[127] In other words, public universities in Texas are not only prohibited from requiring or compelling a diversity statement from a faculty applicant but they must also take active steps to remove that content from the applicant’s materials.

The intersection of the Bill with affirmative action precedent situates the Bill within a larger scope and legal context. Starting with Bakke, the Court established that race could be used as a factor in admissions but struck down the use of racial quotas.^[128] This holding is likely not triggered by the Bill’s provisions because the Bill itself only addresses the use of race in statements rather than as numerical quotas. The holdings in Grutter and Gratz, however, are more relevant to the Bill.

Under Grutter, the Court upheld race-conscious admissions policies at the University of Michigan Law School, affirming that diversity is a compelling interest and that it can be achieved via a holistic review of an applicant’s materials.^[129] Building on the facts from Grutter and contrasting them with the Bill’s provisions, one could argue that public universities aiming to foster diversity in faculty may struggle to conduct a holistic review of an applicant’s materials without the use of a diversity statement.

In Grutter, the Court emphasized the relevance of evaluating a candidate in a comprehensive way, where race could be considered as one factor among many in the context of a broader personal background.^[130] According to the Bill, however, public universities in Texas would be prohibited from considering a diversity statement as part of the hiring process.^[131] This could potentially hinder a university’s ability to assess a candidate’s contributions, especially if those contributions are part of their personal identity. Without diversity statements, public universities in Texas would have to disregard a diversity statement that could inform the committee about the applicant’s potential to positively impact their colleagues, students, and the campus at large.

On the other hand, a diversity statement defined under UT’s guidance is a statement that showcases a candidate’s commitment to further diversity or promote differential treatment of minority individuals—as opposed to simply a statement that mentions the applicant’s race.^[132] It may be true that a university would still be able to provide a holistic review of a candidate’s materials without learning about their commitment to further diversity or promote differential treatment of minority students. If that is true, then the Bill and the facts from Grutter do not necessarily deviate from each other because the Bill itself would not hinder a university’s ability to holistically review a candidate for a faculty role.

In contrast to Grutter, the Court in Gratz ruled against the University of Michigan’s undergraduate admissions policy because it failed to give individualized consideration to each applicant’s materials.^[133] Instead, the university in Gratz automatically gave preferential treatment—via “points”—to an applicant from a minority background.^[134] This system ultimately made race a decisive factor for every minority applicant, even if they were underqualified.^[135] According to UT’s guidance, a university should remove an unsolicited diversity statement from the applicant’s materials—thereby avoiding a situation where the diversity statement could become a determinative factor in hiring decisions.^[136] This approach aligns with the Court’s holding in Grutter because the Bill prevents public universities in Texas from systematically giving preferential treatment to a candidate based on a statement, even if the statement reflects a candidate’s commitment to diversity and does not necessarily address a candidate’s diverse background.^[137]

In the most recent case on affirmative action, the Court emphasized that admissions programs at universities “must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end.”^[138] The Bill’s arguable focus on merit-based hiring—as opposed to hiring based on a diversity statement—can be viewed as an attempt to align with SFFA’s holding because the Bill would limit the role that race plays in faculty hiring decisions.^[139] In particular, the Court in SFFA established that the use of race in admissions decisions must be narrowly confined^[140]—a diversity statement that encourages candidates to reflect on race and their commitment to diversity could be construed as an indirect form of race-conscious hiring that would violate the standard in SFFA. Therefore, the fact that the Bill outlaws a university from compelling and considering a diversity statement is a strong indicator that its provisions fall in line with the holding in SFFA.^[141]

In sum, the interaction between the Bill and affirmative action precedent hinges on whether the Bill allows or implicitly encourages race-based considerations, even in the context of a diversity statement. As it stands, the Bill seems to align closely with current affirmative action precedent as it expects universities to actively remove diversity statements from an applicant’s materials and prohibits universities from providing preferential treatment based on an applicant’s background^[142]—limiting public universities in Texas from considering race in a faculty hiring decision.

V. The Bill in Action Through Hypothetical Scenarios

It is clear from the discussion in Part IV that the Bill is ambiguous in determining what a “diversity statement” means, but there are potential definitions available that may shed some light.^[143] The first definition is to think of “diversity statements” using UT’s guidance. Under this guidance, a statement is a diversity statement if the applicant addresses their commitment to (1) further diversity based on race, ethnicity, and other factors, or (2) promote differential treatment based on an individual’s identity.^[144] There is no provision in the Bill, however, that stipulates UT’s guidance as the sole source of interpretation available.^[145]

A broader definition of a diversity statement, for example, could be the one used at the University of California (UC) system.^[146] In the UC system, a diversity statement addresses “the variety of personal experiences, values, and worldviews that arise from differences of culture and circumstance,” which includes “race, ethnicity, gender, age, religion, language, abilities/disabilities, sexual orientation, gender identity, socioeconomic status, and geographic region, and more.”^[147]

An even broader definition of a diversity statement could be the optional or supplemental statements that some universities include in their application materials. For example, the UT School of Law has an optional statement which encourages students to include “any information” that the candidate believes would “shed[] more light on [the student’s] unique potential to succeed in the J.D. program and contribute to the University community and the field or profession.”^[148] Although these statements are not explicitly called “diversity statements,” these optional statements allow students to discuss any information they think necessary—which could potentially include information related to their race, origin, and ethnicity.^[149]

The Bill’s lack of specific provisions defining this term leave public universities across the state uncertain about the practical steps needed to comply with the Bill. This ambiguity could create confusion and inconsistency in how universities approach the faculty hiring process. Additionally, the Bill’s own opacity may result in legal challenges for public universities in Texas, leaving them uncertain of whether their current practices align with the Bill itself. Without clear guidance from the Bill, hiring departments may struggle to navigate the Bill as it pertains to diversity statements from faculty candidates. The hypothetical scenarios offered below seek to grapple with these potential definitions of “diversity statement,” and the practical challenges a public university in Texas may face as a result of the Bill’s ambiguity.^[150]

A. Hypothetical One: Adversity Statement

Candidate A was born in the United States and his parents immigrated from Mexico as undocumented immigrants. Candidate A was the first person in his family to go to college. He graduated with honors from college and was the valedictorian in law school. Candidate A has devoted his profession and studies to issues related to immigration, clerked for a federal district judge based at the U.S. border with Mexico, and received multiple accolades in the immigration law sphere. He applies for a faculty role at a public law school in Texas and as part of his application materials, he writes a statement where he speaks about the adversity he faced growing up in a family where his parents would only speak Spanish to him and in an environment where he faced discrimination from peers and colleagues for being the child of undocumented immigrants. In his statement, he references these adversities to demonstrate that his experience with these challenges helped him become an analytical thinker and see the world through a more critical and insightful lens.

Under SFFA’s holding, this statement would likely be allowed because Candidate A speaks to the challenges and adversity he faced growing up, but does not explicitly connect those experiences to his race.^[151] On the other hand, Justice Jackson would likely express concern about these types of statements, where an applicant is unable to bring his full identity to the table and explicitly identify himself as Latino.^[152] In her own words, this would be “entertaining a rule in which some people can say the things they want about who they are . . . but other people are not going to be able to because they won’t be able to reveal that they are Latino or African American or whatever.”^[153] The counterargument to this point, however, would be that although Candidate A did not explicitly address his race, he was still able to educate the hiring committee on personal matters that shaped his life and made him a compelling candidate for the university, irrespective of his race.

Under the definition offered by UT’s guidance, it is not necessarily clear whether Candidate A’s statement falls in line with the guidance’s definition of “diversity statement.” According to this guidance, for a statement to be considered a diversity statement, it needs to describe how the candidate will further diversity or how the candidate will promote differential treatment for minority students.^[154] One argument is that by mentioning the challenges he faced and how those transformed him, Candidate A is indirectly addressing how he will promote a diverse environment at the university. The counterargument is that the statement itself does not specifically verbalize this intent. If the latter interpretation is applied, then Candidate A’s statement would not be a diversity statement and, under UT’s guidance, universities would not have to remove Candidate A’s statement from his application materials.^[155]

In contrast, if the Bill adopted UC’s definition of diversity statement, then this statement would likely be problematic and construed as a diversity statement because it addresses a “variety of personal experiences, values, and worldviews that arise from differences of culture and circumstance.”^[156] Similarly, if the Bill framed a diversity statement as an optional statement that addresses “any information,”^[157] then again, this statement would also be prohibited under the Bill and would likely be removed from the applicant’s materials before it advances to a reviewing committee.^[158]

This hypothetical illuminates the challenges that the Bill’s ambiguity presents. Depending on how the Bill ultimately interprets the meaning of diversity statement, it is possible that faculty candidates—similar to Candidate A—may be limited to presenting themselves to a hiring committee through only an adversity statement. This raises important questions about fairness and the potential impact on applicants. For instance, what if it is emotionally difficult for a candidate to frame their identity or qualifications through the lens of adversity? Under this framework, candidates may be forced to revisit painful experiences of discrimination, hardship or exclusion in order to make a compelling case for their candidacy. Further, this approach may unintentionally prioritize statements of personal struggle over the candidate’s professional achievements or academic qualifications.

B. Hypothetical Two: Ideological Diversity

Candidate B grew up in a white, middle-class, conservative family. She was the president of her law school’s Federalist Society, clerked for two conservative judges, and focused her career on constitutional originalism. In her application, she discusses her ideological vision at length and her commitment to a more diverse academic community where conservative thinkers are accepted and given opportunities to teach and research. Her statement does not mention anything related to race, her ethnicity, her gender identity, or sexual orientation.

While Candidate B’s statement does not address her race or intent to foster a racially diverse community, her conservative perspective could still contribute to the diversity of a university, albeit not racial diversity. Her statement addresses her commitment to a more diverse academic community, but this commitment is not specific to race, sexual orientation, or other factors mentioned under UT’s guidance.^[159] For that reason, using the definition from UT’s guidance, it is possible that Candidate B’s statement would not be construed as a diversity statement because it does not specifically address the Candidate B’s intent to contribute to the university’s racial diversity or the differential treatment of minority students.^[160] This interpretation of Candidate B’s statement would potentially allow hiring committees in Texas public universities to consider it as part of her application materials.

Similarly, Candidate B’s statement would likely also be accepted if the Bill used the definition of diversity statement that the UC system proposes because this particular statement hinges on the candidate’s ideological perspective without taking note of her “differences of culture and circumstance.”^[161] In contrast, if the Bill adopted a definition of diversity statement that is akin to some universities’ optional statements, then essentially any additional information provided by a candidate would be construed as a diversity statement and Candidate B’s statement would be prohibited by the Bill.^[162]

In sum, this type of ideological statement would likely be accepted if the Bill adopted UT’s guidance and UC’s definition of diversity statement because Candidate B’s statement would not be construed as a diversity statement under either of those interpretations. However, if the Bill understands a diversity statement to be any statement that offers additional information from the candidate, Candidate B’s statement would likely be prohibited by the Bill and removed from her application materials.

Compared to the first hypothetical, it seems that the ideological statement from Candidate B would be more likely to survive the Bill’s prohibitions than Candidate A’s statement. In practical terms, the adversity statement from Candidate A may be allowed in one out of the three interpretations of what a diversity statement could mean. Meanwhile, the ideology statement from Candidate B is likely allowed in two out of the three interpretations offered. Noting this, is there an argument that the Bill penalizes candidates for characteristics they are born with—like their race—while inadvertently encourages candidates to express aspects of their identity that are developed over time, such as their ideological perspective? The worry is that the Bill, by virtue of its own ambiguity and lack of clarity on what a diversity statement means, inadvertently creates exceptions to certain types of diversity—in this case, ideological diversity—but limits candidates from showcasing their racial backgrounds and identities.

The dissent in SFFA eloquently expressed a similar concern when the Court exempted military academies from its ruling.^[163] In the dissent, Justice Sotomayor expressed puzzlement regarding this carveout by stating that “[t]o the extent the Court suggests national security interests are ‘distinct,’ those interests cannot explain the Court’s narrow exemption.”^[164] The dissent points to the Court’s inconsistent application of race-conscious policies, questioning the justification for allowing exceptions based on institutional needs, like national security.^[165]

Through this lens, perhaps the Bill would similarly create an indirect exemption for ideological diversity as displayed in Candidate B’s hypothetical. In turn, this could result in a system that prioritizes and protects certain types of diversity, while others—particularly related to race—would be limited. The dissent in SFFA expresses that race, as well as other factors from a candidate’s background, may be considered without sacrificing one type of diversity over another:

Consistent with the Court’s precedents, [Harvard and UNC’s] holistic review policies consider race in a very limited way. Race is only one factor out of many. That type of system allows Harvard and UNC to assemble a diverse class on a multitude of dimensions. [Harvard and UNC’s] policies allow them to select students with various unique attributes, including talented athletes, artists, scientists, and musicians. They also allow [Harvard and UNC] to assemble a class with diverse viewpoints, including students who have different political ideologies . . . who have struggled with different types of disabilities, who are from various socioeconomic backgrounds, who understand different ways of life in various parts of the country, and—yes—students who self-identify with various racial backgrounds and who can offer different perspectives because of that identity.^[166]

By potentially benefitting some forms of diversity over others, the Bill could inadvertently risk undermining the holistic approach upheld by the Court’s affirmative action precedent, creating an inequitable framework for faculty hiring purposes.^[167] Ultimately, the point of these two hypotheticals is to shed light on the practical consequences that this Bill creates for public universities in Texas. While these hypotheticals are not exhaustive—countless other scenarios could emerge in faculty hiring processes—the key issue is that, due to the Bill’s ambiguity, public universities in Texas are left disempowered in balancing their efforts to evaluate candidates comprehensively and fairly while abiding by the Bill’s provisions.

VI. Should We Care?

The next question that stems from the hypotheticals discussed in Part V is whether we should care about the potential consequences that stem from a system of faculty hiring that is not only ambiguous, but that potentially limits consideration of an applicant’s race, origin, and ethnicity.

On one side of the argument, the views of Justice Sotomayor in SFFA are illustrative. Justice Sotomayor points out that the holding in SFFA will ultimately cause the “sharp decline” of enrollment for minority students at universities across the country.^[168] She cites UC’s push for color-blind admissions decisions in 1996 as the cause of the decreasing numbers of enrollment for Black and Latino students at universities like UC Berkeley.^[169] Justice Sotomayor notes that the issue expands beyond the fact that fewer minority students enroll at universities, but that ultimately, fewer students of color graduate to join “crucial professions,” like military personnel, doctors, and teachers.^[170] In Justice Sotomayor’s words, “greater diversity within the teacher workforce improves student academic achievement.”^[171] It is easy to imagine that faculty members, in their teaching roles, are responsible for not only explaining and introducing new concepts to students, but are also responsible for the way a class is taught, the topics discussed, as well as how and why certain topics are discussed.

Taking the candidates from the hypotheticals above, someone like Candidate A, whose parents were undocumented immigrants might have a different perspective on the law compared to someone like Candidate B. In light of these differences, these two candidates may teach a class differently, may introduce topics at a different time, may emphasize some ideas more than others—perhaps in part due to their background, race, and ideological beliefs. The question is not whether the students will get different insights from each teacher—this will happen regardless of a faculty member’s race or background—rather, the question is whether these different insights and teaching philosophies will impact a student’s academic achievement and future professional outcomes.

The faculty role model theory, for example, explains that “when minority students witness minority faculty succeed, it may demonstrate to them that such achievement is possible in higher education.”^[172] Further, there is the argument that minority students who see faculty members who look like them may make students feel welcomed and accepted in their university environments.^[173] In fact, according to the Association of American Colleges and Universities, diversity initiatives impact students’ satisfaction with their school, improve their involvement with the institution, and promote their academic growth.^[174] In SFFA’s dissent, Justice Kagan, Justice Sotomayor, and Justice Jackson voice that diversity in college campuses is more than a “trendy slogan.”^[175] The three dissenting Justices explain that with a diverse environment, “students of every race will come to have a greater appreciation and understanding of civic virtue, democratic values, and our country’s commitment to equality.”^[176]

Justice Thomas, however, does not buy this idea. He argues that ever since Grutter was decided, he has “sought to understand exactly how racial diversity yields educational benefits.”^[177] Further, he establishes that both Harvard and UNC’s educational goals in SFFA are vague and do not represent tangible examples that clearly show how diversity has helped students improve.^[178] He concedes that diversity in a college campus may “foster debate, sharpen young minds, and hone students’ reasoning skills,” yet, he does not understand “how diversity with respect to race, qua race, furthers this goal.”^[179]

Justice Thomas is not alone in questioning the benefits of diversity in a university. Professor Anthony Kronman, the former Dean of Yale Law School, suggests that diversity in the classroom does not necessarily add value to students of subjects like math, chemistry, and physics, where the aim of these subjects is to understand principles that are not necessarily related or connected to the human experience at all.^[180] One may ask if it really matters whether a group of students learn the periodic table from Candidate A or Candidate B. Perhaps the answer is that the faculty’s background or race does not impact students’ learning in subjects like mathematics and science. When teaching subjects like law, history, sociology, and literature—subjects that “employ interpretive schemes,” or that are likely more tied to the human experience, it is possible that the assessment may be different.^[181]

Ultimately, both sides of the spectrum are valid ways to reason through this difficult question and perhaps people will always disagree on whether diversity—and faculty diversity specifically—may be a compelling interest that universities should pursue. Regardless, it is relevant to ask these questions and analyze the impact that laws such as the Bill will have on Texas public universities.

VII. Conclusion

Affirmative action in the context of higher education in the United States has been a contentious and convoluted topic for more than forty years.^[182] To the extent that the Court’s decision in SFFA can be summarized, one of its interpretations is that a student cannot receive an automatic benefit on their application simply because they are of a certain race. Assuming that the Court’s holding on affirmative action extends to faculty hiring, the same standard would likely apply for faculty applicants at universities in the United States.

The recently approved Senate Bill 17 provides that a university may not compel a diversity statement from an applicant, nor may a university give preferential treatment to an applicant on the basis of a diversity statement.^[183] Due to the Bill’s ambiguity in defining “diversity statement,” the Bill’s provisions may be read flexibly—and practically, its consequences can significantly change depending on the relevant reading applied.

For example, the Bill may be read in a way that would ban universities from considering any additional information a candidate offers in their application materials. The flipside is that the Bill may be construed in such a way that it allows candidates to include additional statements and information, so long as those statements do not address a candidate’s intent to further diversity or promote differential treatment of minorities. The Bill, as it stands, is potentially stricter than the current standard that SFFA proposes. The meaning of this Bill will undoubtedly present practical consequences for public universities in Texas as they attempt to evaluate faculty candidates without certain information in their application materials—arguably incredibly important information. While the consequences of the Bill—positive, negative, or catastrophic—may not be readily apparent now, the next few years will inform who was damaged and who, if anyone, benefited.

Sofia Winograd