The U.S. Education Department's Office for Civil Rights is requiring Texas Tech University's medical school to stop considering race in admissions. The move marks an escalation of the Trump administration's efforts against colleges' affirmative action policies.

The move is based on past U.S. Supreme Court decisions, not the current lawsuit against Harvard University, which critics of affirmative action hope will be a vehicle to limit the ability of colleges to consider race in admissions.

In the OCR agreement with Texas Tech, the government states that the medical school could resume consideration of race in admissions if it provides a "reasoned, principled explanation for its decision and identifies concrete and precise goals" consistent with legal standards. Any such future plan -- which OCR would require the university to provide the government 60 days in advance for review -- would have to show that race-neutral alternatives would not work. Further, the plan would need to show that "no undue burden is imposed on applicants of any racial groups."

Texas Tech's medical school appears to have gotten in trouble for failing to demonstrate that it was conducting regular reviews of its affirmative action programs to be sure that consideration of race was needed.

The university indicated in a letter to OCR that it believed it was not doing anything illegal, but that it would go along with OCR's determination.

Medical schools have long played a key role in affirmative action debates. The Supreme Court's 1978 Bakke decision, which involved an applicant to the medical school at the University of California, Davis, continues to govern college admissions policies well beyond medical schools. The ruling said that colleges could consider race in admissions, in certain circumstances, but could not reserve slots based on race or ethnicity.

In the years since, medical schools have struggled with diversity, seeing dramatic increases in Asian American enrollments but remaining relatively flat in black and Latinx enrollments.

Eric Bentley, vice chancellor of the Texas Tech University System, wrote to OCR that the university was agreeing to the limits placed by OCR, but that the university "strongly believes that diversity in academic medicine is not only a necessity at [the medical school] but is a necessity nationally as well."

The Center for Equal Opportunity, which opposes the consideration of race in admissions, filed a complaint against Texas Tech in 2004, and that complaint led -- eventually -- to the recent agreement.

Roger Clegg, president and general counsel of the center, said via email that he believed "a lot" of colleges are not "meeting the narrow tailoring requirements set out by the Supreme Court." And one of those requirements, he noted, is to conduct regular reviews of whether the policies to consider race are needed.

Future of Affirmative Action

The agreement between OCR and Texas Tech comes amid a push by the Trump administration to limit colleges' consideration of race. The administration has backed a lawsuit charging that Harvard discriminates against Asian American applicants, and is investigating the issue at Yale University as well. (Both universities deny wrongdoing.)

An Education Department spokeswoman said that the agreement was consistent with Supreme Court rulings. "The Supreme Court has issued clear guidance on the appropriate consideration of race in college admissions and OCR is enforcing … the court’s rulings," she said via email.

Others also stressed that the agreement did not challenge the idea that colleges can consider race in admissions in certain circumstances.

A statement from the Association of American Medical Colleges said, "The resolution agreement with the Texas Tech School of Medicine is based upon 40 years of Supreme Court precedent permitting the consideration of race as one of many factors in admissions, where necessary and narrowly tailored to achieve a school’s educational mission. The AAMC will continue to advocate for the ability of each medical school to make admissions decisions consistent with its mission, within the Supreme Court’s framework, to advance the health of all."

The American Association for Access, Equity and Diversity issued this statement: "We look forward to reviewing the agreement between Texas Tech and OCR … This administration has said not to read these agreements as blueprints as to how other universities should respond. Therefore, OCR should go through the same process it has undertaken with other major policy changes and tell us what they believe the law is. Institutions should not be worried about whether or not race may be used as a factor in admissions decisions because the law is clear. What institutions may be concerned about and should ask OCR directly 'What is the agency's interpretation of the law and how and/or when they believe race may be used?'"