Are the Regents ignoring the law?

The UW Board of Regents is prepared to adopt a policy that mandates the consideration of race in freshman admissions. (Update: They passed it unanimously.)The policy specifies that a number of an applicant's characteristics including "whether the applicant is a member of an historically underrepresented racial or ethnic group." The use of race would not be new as current policy permits the "nontraditional" admission of students who do not meet the regular admission status "because" they are members of minority groups. My guess is that the system is concerned that policy may be a little too blatant to pass constitutional muster.

The problem, it seems to me, is that state law precludes consideration of race. Sec. 36.11(3)(a) of the state statutes states that no "tests based upon race ... shall ever be allowed in the admission of students" to the UW system. Sec. 36.12(1) says that "[n]o student may be denied admission to, participation in or the benefits of, or to be discriminated against in any service, program, course or facility of the [UW] system because of the student's race ...."

Specifying that race may be considered in admission decisions is to impose a racial test. It is to permit the admission of a student who would otherwise not be admitted because that student belongs to a certain racial group. As the university's director of admissions has said [i]If we're undecided, and the kid's on the border, race or ethnicity can push them over...."

If there are only a given number of admissions available, this necessarily means that someone else will not be admitted because they are not in the target racial group. Thus, they have been discriminated against on the basis of their race. Only the most sophistical construction of the statute can avoid this conclusion.

It is certainly true that the Supreme Court, by a 5-4 vote, has held that an admissions program that considers race "as a factor" does not violate the United States Constitution. According to Rep. Steve Nass, some people apparently think this trumps state law. If they do, I hope they are not lawyers. (Update: Not only are they lawyers, but one is my former partner.) As Rep. Nass quite correctly points out, such a claim is unequivocally false. The Supreme Court decision, Grutter v. Bollinger, only means that a state may adopt such a program, not that it must.

The Regents remain bound by state law which, it seems, they have and will continue to ignore.
If evaluating candidates for admission based upon the color of the skin is a good idea, the Regents should go to the legislature and ask it to amend the law to give them the authority to do so. As it is, it is hard to see why what they are doing is not patently illegal.