MARCH 30, 2010, 11:06 P.M. ET
By JESS BRAVIN
The Obama administration has asked a federal appeals court to uphold a race-conscious admissions system at the University of Texas at Austin, aiming to stymie a lawsuit that conservatives hope will spur the Supreme Court to limit affirmative action at public colleges.
The Texas case tests a 2003 Supreme Court decision that upheld a race-conscious admissions system at the University of Michigan Law School. That ruling in Grutter v. Bollinger said the law school had "a compelling interest in attaining a diverse student body." By a 5-4 vote, the court prohibited "outright racial balancing," but said race could be a "plus" factor to build a "critical mass" of minority students.
But 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 for assertedly benign purposes.
In a 2007 case, Justice Alito joined Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas in an opinion that barred local school boards from considering race when making pupil assignments to integrate elementary and secondary schools. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," the chief justice wrote.
The shift in the court has encouraged critics of the Grutter opinion that the court might consider limiting consideration of race to professional schools—whose applicant pools are small and which offer exclusive networking and employment opportunities—or possibly overturning it altogether.
The University of Texas case was brought in 2008 by two white students who were rejected for admission to the state's flagship campus. 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 federal civil-rights 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.
The case "might cause the Supreme Court to think again" whether diversity remains important enough to justify classifying students by race, said Bert Rein, a Washington attorney representing the plaintiffs.
Patricia Ohlendorf, vice president for legal affairs at the Austin campus, said many private and public universities take some account of race in admissions. Because blacks and Hispanics on average score lower on entrance exams than white and Asian-American applicants, universities have adopted affirmative-action programs to compensate.
"We think it is critical to being able to achieve the diverse institution that we think is important," she said.
The Obama administration agrees. "[The] university's effort to promote diversity is a paramount government objective," says the brief filed by the Education and Justice departments. The administration disputed claims that Texas was simply engaging in raw racial preferences.
"The question is not whether an individual belongs to a racial group, but rather how an individual's membership in any group may provide deeper understanding of the person's record and experiences, as well as the contribution she can make to the school," the brief says.
Texas once enforced official segregation, and it took a 1950 Supreme Court ruling before the University of Texas would admit blacks to its law and graduate schools. In more-recent decades, the state relied on affirmative action to boost minority enrollment, only to have that struck down by the Fifth Circuit in a 1996 decision, Hopwood v. Texas.
In response, Texas adopted a formula offering admission to the top 10% of each high school's graduating class. After the Grutter ruling, Texas resumed considering race. Black enrollment doubled to 6% from 3% and Hispanic enrollment rose to 20% from 13%, according to Judge Sparks's opinion in the case at hand.
The Fifth Circuit hasn't yet scheduled arguments in the case, Fisher v. University of Texas.
Write to Jess Bravin at email@example.com