- The Washington Times - Tuesday, August 14, 2012

The District has joined more than a dozen states in supporting public universities’ right to consider race during their admissions processes.

D.C. Attorney General Irvin B. Nathan signed onto a “friend of the court” brief that argues it is constitutional for the University of Texas at Austin to employ a policy that fills its slots with students in the top 10 percent of their high school classes and then selects the rest of its freshman class through a “holistic evaluation” that looks at race, among other factors.

The state of New York filed the amicus brief on behalf of 13 other states — including Maryland — and the District and the Virgin Islands. While the District is not a state, it does have its own system of public higher education, the brief noted.

The District has only a tangential relationship to the case, but the opinion of the high court could have sweeping effects on affirmative action policies across the nation if justices were to rule that public universities are not allowed to consider race during admissions.

Mr. Nathan and Mayor Vincent C. Gray couched their decision to join the other states as a way to support diversity in educational institutions.

“The District of Columbia has long prided itself on being an inclusive and diverse place,” Mr. Gray said. “The District government will continue to support programs that will allow this diversity, and the richness and strength it brings, to flourish.”

In 1996, the 5th U.S. Circuit Court of Appeals ruled “in broad terms” that UT’s law school could no longer consider race during the admissions process “in any way or for any purpose.”

“This change led to a large decrease in the enrollment of African-American first-year students, and a smaller but still significant decrease in the enrollment of Hispanic first-year students,” according to the states’ brief signed by Mr. Nathan and other attorneys general.

The Texas legislature took a two-pronged approach to the issue — the first of which was to automatically accept students from the top 10 percent of their classes.

“Because of the presence of de facto racial and ethnic segregation in Texas’s high schools, the law succeeded in increasing the percentages of African-American and Hispanic enrollment at the school,” the brief said.

Second, it used a broad evaluation that considers a range of factors to round out enrollment.

“This holistic evaluation of applications did not explicitly consider applicants’ racial or ethnic background, but it was nonetheless partially designed to increase minority enrollment by considering factors, such as socio-economic status, that were thought to be correlated with minority status,” according to the brief.

The amicus brief states also cited the Supreme Court’s landmark 2003 decision in Grutter v. Bollinger, which upheld the University of Michigan law school’s use of affirmative action in its admission policy.