Is the University of Texas' Admissions Policy Legal?

[WSJ Law Blog]

Let’s open this post with a little Law 101; a little primer on how law in the U.S. often gets made.

After the U.S. Supreme Court issues a landmark opinion on a controversial law or policy, lawmakers and policymakers craft laws or policies that push right up against the decision’s boundaries. That, of course, leads to more challenges, which leads to fine tuning by the Supreme Court, sometimes by taking new cases, other times by letting rulings made by lower courts stand. Over a period of years, sometimes decades, Congress, state and local lawmakers, schoolboards, corporate America, police and fire departments, and many many others learn what they can and can’t do.

This post on Tuesday from Vanessa O’Connell showed how this is starting to play out in the gun-control arena, following the landmark 2008 case that struck down Washington D.C.’s firearm ban.

And that brings us to affirmative action, and a story in Wednesday’s WSJ by Jess Bravin. In 2003, the Supreme Court upheld an admissions system at the University of Michigan Law School that used race as a factor. In that ruling, Grutter v. Bollinger, the court said the law school had “a compelling interest in attaining a diverse student body.” The court prohibited “outright racial balancing,” but said that race could be a “plus” factor to build a “critical mass” of minority students.

But what does this mean — a “plus” factor to build a “critical mass” of minority students? Well, yes, that’s still largely an open question.

A case that could help shape the law has reached the Fifth Circuit. It involves a race-conscious admissions system at the University of Texas at Austin. According to Bravin, the case was brought in 2008 by two white students who were rejected for admission. At UT Austin, three-fourths of freshmen gain admission on academic grounds if they rank among the top 10% of their high school’s graduating class. But others are admitted through a “holistic” evaluation in which admission officers, alerted to each applicant’s race by a label on his or her file, may take into account racial or ethnic identity, among other factors.

The white students alleged that the admissions formula violated the law. In August, U.S. District Judge Sam Sparks rejected their claim, finding that Texas’s admissions plan was legal because it was based on the Michigan system upheld by the Supreme Court.

The plaintiffs then appealed to the Fifth U.S. Circuit Court of Appeals in New Orleans; whoever loses there likely will ask the Supreme Court to take up the issue.

Will the Texas admissions plan be found to be legal? Perhaps. But UT might have a tougher time winning approval than the folks in Michigan had. The Grutter opinion’s author, Justice Sandra Day O’Connor, retired in 2006, and her successor, Justice Samuel Alito, has helped solidify a five-justice conservative majority that has been highly skeptical when government classifies people by race, even when it claims to have benign purposes in mind.

The Obama administration recently sided with the University. It filed an amicus brief with the Fifth Circuit arguing that the “university’s effort to promote diversity is a paramount government objective.”