[JURIST] The US District Court for the Western District of Texas [official website] on Monday upheld [opinion, PDF] a University of Texas at Austin (UT) [academic website] affirmative action [JURIST news archive] policy of considering race in student admissions. The plaintiffs were two Caucasian females who were denied admission to UT. They challenged the admission policy, which allows race and ethnicity to be considered among several other factors. The plaintiffs argued that a Texas state law that requires UT to accept all students in the top ten percent of their high school class provides a diverse student body, such that it is unnecessary to consider race and ethnicity to achieve diversity. The court rejecting that argument, holding that UT's policy was consistent with the 2003 US Supreme Court [official website] ruling in Grutter v. Bollinger [opinion text; JURIST symposium]:

The Texas Solicitor General summarized this case best when he stated, "If the Plaintiffs are right, Grutter is wrong." Absent Texas' Top Ten Percent law and the effect it has on UT admissions, the Court has difficulty imagining an admissions policy that could more closely resemble the Michigan Law School's admissions policy upheld and approved by the Supreme Court in Grutter. But if the Plaintiffs are right, and if the Top Ten Percent Law somehow acts to make UT's consideration of race in admissions unconstitutional, then every public university in the United States would be prohibited from considering race in their admissions process because the same type of "percentage plan" which the Top Ten Percent law embodies could be established at any state university, and thus their failure to implement such a plan would constitute a failure to consider race-neutral alternatives. Grutter stands for exactly the opposite, as the decision explicitly permitted the consideration of race despite the existence and availability of race-neutral alternatives like percentage plans or lotteries. Consequently, as long as Grutter remains good law, UT's current admissions program remains constitutional.

The Mexican American Legal Defense and Educational Fund (MALDEF) and the National Association for the Advancement of Colored Persons Legal Defense Fund (NAACPLDF) [press releases] both filed amicus briefs in the support of UT's policy and applauded Monday's ruling. The attorney for the plaintiffs said he plans to appeal [AP report].

Affirmative action continues to be a controversial issue. In April, California Attorney General Jerry Brown [official website] said [opinion letter, PDF] that portions of Proposition 209 [text], an amendment to the California Constitution [text] banning the use of affirmative action for state hiring, contracting, or university admission, may violate the US Constitution [JURIST report]. In November, Colorado voters narrowly rejected [JURIST report] a ballot measure [Amendment 46 text and materials] to prohibit governmental agencies from discriminating or granting preferences on the basis of race and sex. A nearly identical measure passed [JURIST report] in Nebraska. In 2006, Michigan voters approved a similar state constitutional amendment, which was upheld [JURIST report] in March by a federal district judge in a lawsuit alleging that such an affirmative action ban violated the US Constitution.