Alleged racial bias in the current admissions approach

[Frank Cross]

It seems like the preferred answer to admissions policy is one that takes
no account of the racial mix outcome.  I find it inconceivable that this
could happen, especially in a state-funded university.  The issue is
politically
central, and people aren't going to be oblivious to it.  I suggested earlier
that such a court order would simply produce a dishonest decision that
the 10% rule or an equivalent  was selected without regard to outcomes.

To inject a note of realism, the courts are never going to strike down such
a policy.  Conservatives, especially the anti-affirmative action crowd,
love it.
It is facially neutral and consistent with their belief that affirmative
action
is not necessary for minorities to succeed.  As I recall, Mark Tushnet
started this thread.  I might infer he made the argument to show the logical
implications of the anti-affirmative action decisions and thereby discredit
them.  Which would in fact be the result of a decision striking down such a
policy in Texas.  It would create a huge public and legislative backlash
against the courts.  Therefore, I suspect, they would never make such a
decision or
would cave, in response to the backlash.

Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712