The U.S. Supreme Court recently ruled 6-3 that the admissions program at Harvard College and the University of North Carolina violate the equal protection clause of the U.S. Constitution because they discriminate on the basis of race. That decision in Students for Fair Admissions v President and Fellows of Harvard College has direct implications on the State of Texas, and not just with regard to college admissions.

Through the years, the State of Texas has defended its use of race as a factor in admissions at the University of Texas and other state colleges in much the same manner that was struck down at Harvard and UNC. As Chief Justice John Roberts wrote, “eliminating racial discrimination means eliminating all of it.”

This holding calls into question all of the ways that states like Texas use race as a factor to pick winners and losers in government programming.

During the 88th Texas Legislature, State Rep. Briscoe Cain (R–Deer Park) filed House Bill 5140, which identified and eliminated 20 pages worth of Texas statutes that use race or ethnicity as a factor in not just higher education admissions but also governmental employment, contracting, other governmental functions.

The Harvard decision means that Texas taxpayers are now foreseeably on the hook for damages payable to any plaintiff who can demonstrate they have been the victim of racial discrimination by the state, whether that discrimination has occurred with regard to admissions, employment, or contracting.

In order to protect taxpayers, Gov. Abbott and acting Attorney General John Scott should take action immediately to suspend each and every race-based program identified in House Bill 5140. Gov. Abbott should also place legislation like House Bill 5140 on a special session call so the Legislature can permanently remove the stain of racial discrimination from our statutes.

This is a commentary published with the author’s permission. If you wish to submit a commentary to Texas Scorecard, please submit your article to

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.