In 2003, the U.S. Supreme Court ruled that under certain circumstances, and for a period of only 25 years, colleges and universities could use racial and ethnic preferences in their admissions process. In Grutter v. Bollinger, Justice O’Connor, writing for a divided Court, wrote that achieving racial and ethnic “diversity” is so important, a school can lower the bar for minority applicants. The Supreme Court’s decision in Grutter, along with a companion decision in Gratz v. Bollinger (which rejected race-based admissions under slightly different circumstances) reflect a highly splintered Court. The dissents of Justices Scalia and Thomas in Grutter, for example, indicate that the Court may read Grutter narrowly in future cases.

We agree with Justices Scalia and Thomas. But even under a liberal reading of Grutter, UT’s use of race and ethnicity violates the Constitution.

Here’s why: Grutter only allows schools to use race-base admissions preferences if race-neutral means have not been considered. UT has considered and implemented race-neutral means. Following Hopwood v. State of Texas, the Texas Legislature passed the Top 10% Plan in 1998. The Top 10% Plan is facially race-neutral because it grants automatic college admissions to any student graduating in the top-10 percent of his or her class. The Top 10% Plan shows that UT has considered and successfully used race-neutral alternatives. Under the Top 10% Plan, racial diversity at UT is higher today than it was when UT employed a race-based quota system.

In spite of this, the University of Texas in 2005 reintroduced racial and ethnic preferences into the admissions process of the UT system. Then-UT President Larry Faulkner claimed that because the majority of UT classrooms aren’t “diverse,” UT reintroduced racial preferences for those applicants not admitted through the Top-10% Plan.

Given UT’s success with the race-neutral Top 10% Plan, UT’s decision to reintroduce racial preferences runs afoul even of Grutter. The Supreme Court ‘s opinions in Grutter and Gratz give no reason to suggest that the Court would permit the University of Texas, which already has a proven, race-neutral system in place, to use race or ethnicity to achieve diversity in various segments of the UT world, whether in classrooms (as suggested by President Faulkner), dorms, laboratories, or sports teams. We believe the sort of race-based micromanagement of student life and culture that UT now advocates has no legitimacy under the Equal Protection Clause, particularly in light of UT’s documented success in maintaining diversity without resorting to racial classifications.