The Supreme Court set the legal framework for a generation of university admissions in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). The Court affirmed an injunction that prohibited a fixed quota reserving sixteen percent of seats in the medical school for minorities, but it reversed an injunction forbidding any consideration of race in admissions. Universities were free to consider race as one factor in an admissions process, and they were free to prefer minority applicants, but they were not free to reserve a fixed number of spaces.
The legal framework in Texas was further shaped by desegregation litigation. Texas had long segregated all of its educational institutions by race, and Texas had litigated all the way to the Supreme Court in an unsuccessful defense of that system. Sweatt v. Painter, 339 U.S. 629 (1950). It is one of history's ironies that Sweatt v. Painter and Hopwood v. Texas both involved race and admissions at The University of Texas Law School. In Sweatt the Law School considered the race of applicants to ensure that African-Americans were excluded; in Hopwood the Law School considered the race of applicants to ensure that all races were included. It was sued both times. The Hopwood plaintiffs thought the Law School's behavior was essentially the same in both cases: it considered race. The Law School thought its behavior was essentially different, distinguished by its radically different goals in the two eras.
Public colleges and universities in Texas abandoned formal exclusion of African-Americans after Sweatt, but segregated attendance patterns tended to persist. Segregation persisted partly from inertia and the preferences of white and minority students; partly because of institutional hostility from some of the formerly white institutions; and partly because the long history of discrimination in Texas, and especially of segregation in elementary and secondary education, meant that proportionately fewer minorities than whites achieved the highest levels of academic success. As political resistance to desegregation faded, admissions became more competitive. At the time of Sweatt v. Painter, admission to the Law School was open to any college graduate; today, the Law School receives four to five thousand applications, nearly all of them from students with strong academic records, who compete for fewer than five hundred seats.
Minority enrollment in the Law School remained small in the years after Sweatt, and it actually declined as admissions became more competitive. With a color-blind process and increased competition for seats, the Law School admitted no African-Americans in 1971. The faculty responded with a separate committee to give special consideration to minority applications.
In 1977, while Bakke was pending, a federal court ordered the federal Office of Civil Rights to investigate claims that higher education in Texas was still segregated. (This came in an unreported order in the Adams litigation. See Adams v. Richardson, 356 F. Supp. 92 (D.D.C.), modified and aff'd, 480 F.2d 1159 (D.C. Cir. 1973)). OCR found that Texas had failed to eliminate the effects of its historic segregation; it demanded a plan that would eliminate those effects, including goals for minority enrollment at each institution and admission of minority students who did not necessarily meet the usual admission criteria. Litigation and negotiation with OCR have continued intermittently for more than twenty years; to this day, OCR contends that Texas has not done enough to desegregate its institutions of higher education.
For twenty-five years after 1971, the Law School refined and improved its affirmative action program. The administrative details of the program changed from year to year, but the long-term trend was independent of those details. The quality and quantity of minority applicants, and the Law School's ability to attract those applicants, gradually increased. The Law School preferentially admitted minority applicants throughout this period, but the magnitude of that preference gradually declined, and the average academic success of students thus admitted gradually increased. A program that had been controversial within the faculty gradually became non-controversial in light of these changes; by the time of the lawsuit, only one professor continued to criticize the program.
The Law School was proud of its affirmative action program and believed that it was one of the most successful such programs in the country. Minority law students at Texas graduated at higher rates than at most other national law schools, and most of those graduates went on to successful careers. By the mid-nineties, the Law School had trained more African-American and Mexican-American lawyers than any other historically white law school, and it had trained a significant fraction of the national total of minority lawyers.
The essence of any affirmative action program is the magnitude of the preference extended to minority students. In attempting to describe that magnitude mathematically, the Hopwood plaintiffs and the Law School emphasized very different features of the program. Plaintiffs emphasized the numbers of applicants allegedly passed over; there were hundreds of white applicants with grades and test scores higher than some minority applicants who were admitted.
The Law School emphasized that most of these applicants were clustered in a narrow range so that there was little difference between the white applicants denied admission and the minority applicants admitted. Applicants tend not to apply either to schools where they have little chance of admission or to schools where they will be greatly overqualified. The result is that hundreds of applicants are clustered at or near the threshold of admission. Within this range, there are substantial numbers of minority applicants, but there are many more whites. Because there are so many white applicants, color-blind selection in this range yields very few minorities, but preferential selection of minorities in this range can greatly increase minority enrollment with little impact on the academic credentials of the entering class.