Today brings an appellate argument in the first major test of the U.S. Supreme Court's 2003 ruling that allowed colleges and universities to keep using race as part of their admissions criteria, and Wiley Rein founder Bert Rein will be front and center at the 5th U.S. Circuit Court of Appeals.
Rein will be representing two white students who claim that the University of Texas is violating the law by including race among its admissions criteria; the university rejected both students when they applied for membership in UT's class of 2008, according to court records and this nice write-up in the Austin American-Statesman.
The university, represented by state lawyers, claims its policy falls within the guidelines of the landmark Supreme Court ruling in Grutter v. Bollinger, in which the Court ruled that universities could continue using race as a factor in admissions decisions provided they did not use quotas. The high court concluded universities have a "compelling interest" in maintaing a diverse student body with "a critical mass" of minority students. It never defined what "a critical mass" is.
Rein will argue today that UT goes too far in prioritizing race. The school includes race as one of seven "special circumstances" an applicant might face. Those circumstances are in turn lumped together and used as one of six criteria to form a "personal achievement score" for the applicant. The university uses that score along with two academic measures to choose its candidates.
But only about 20 percent of incoming UT students need to go through this complicated process, court records show. The rest get in under a state law, enacted in the late 1990s, that guarantees admission to any student from Texas that ranks in the top 10 percent of their high school class. State officials hoped the law would boost the minority presence at UT, but its impact turned out to be small; in 2004, only 4.5 percent of UT's incoming freshmen were black, and 16.9 percent were Hispanic, the American-Statesman says. The state university system began using race as a "special circumstance" in 2005 once it became clear the top 10 percent rule wasn't doing enough to help minority applicants, court records show.
The Washington, D.C.-based Project on Fair Representation, a longtime Wiley Rein client, argues that the new system is unconstitutional and violates Grutter. Rein dismissed the notion, put forth by his opponents, that the Texas case is really a not-so-subtle Trojan horse designed to give the newly conservative Supreme Court a chance to overturn Grutter once the 5th Circuit rules.
"Anyone who has read the briefs can see the case is framed in terms of properly understanding and bounding Grutter," Rein says. "If the 5th Circuit properly applies Grutter, it could end this case," he adds. "We are not using it as a way station" to the Supreme Court.
There are two other Am Law firms serving as amicus counsel to parties who support the UT system, court records show. O'Melveny & Myers partner Sri Srinivasan is leading a team advising the Texas League of United Latin American Citizens, an advocacy group that supports the university's current admissions policy as a way of fostering diversity and encouraging Latinos to strive for higher education, court records show. Srinivasan did not immediately respond to messages seeking comment. He was among the team of lawyers that argued (and won) the Conrad Black/Jeff Skilling case in which the Court struck down portions of the so-called honest services law. Drinker, Biddle & Reath partner Lawrence Fox represents about a dozen academic groups supporting the UT plan, court records show. Fox did not immediately return a call seeking comment.
This article first appeared on The Am Law Daily blog on AmericanLawyer.com.