The University of Texas has a long history of discriminating on the basis of race. In 1950, four years before the landmark decision in Brown v. Board of Education, the U.S. Supreme Court ordered UT’s law school to admit black students, a rare desegregation ruling under the “separate but equal” regime. In 1950’s Sweatt v. Painter, the High Court concluded that Texas’ newly-established all-black law school (created in response to Heman Sweatt’s legal challenge) was not “substantially equal” to UT’s law school under the rubric of Plessy v. Ferguson (1896). As a result, UT’s law school opened its doors to black students. The precedent in Sweatt v. Painter is a painful reminder to Texans of the state’s race-conscious past, and the well-deserved source of shame for the Jim Crow era. In 2005, Travis County named the local courthouse, where a state judge rejected Sweatt’s path-breaking lawsuit, in his honor.
Alas, Texas has not learned the right lesson of history—the principle of color blindness. The University of Texas continues to discriminate on the basis of race, boasts about it, and expends considerable legal resources to defend the practice in court. The only difference is that UT’s goal is now achieving “diversity” by discriminating in favor of blacks and Latinos.
In all of life’s endeavors—athletics, scholastics, and commerce—different groups exhibit different outcomes. In order to mask the differential in performance among racial and ethnic groups, in the 1960s colleges and universities nationwide began to practice “affirmative action” in admissions, to increase the number of “under-represented” minorities, mainly blacks and Latinos. “Affirmative action”—then and now—consists of giving an artificial boost to applicants of certain groups whose GPAs and test scores would not have qualified for admission on an objective, competitive basis. Often, the gap in qualifications between “under-represented” groups and the overall applicant pool is quite large, which explains the “need” for racial preferences if “diversity” (i.e., proportional representation) is to be achieved. Because in most contexts higher education admissions is a zero-sum game, admitting one (less-qualified) applicant on the basis of race results in denying admission to another (better-qualified) applicant. Predictably, as affirmative-action programs became more aggressive, and merit-based admissions became more competitive, the victims of reverse discrimination challenged the practice under the Equal Protection Clause of the Fourteenth Amendment, which the Supreme Court held in Brown forbids discrimination based on race. Jurisprudential chaos ensued.
Judicial Chaos Ensues
In 1978, the Supreme Court addressed affirmative action for the first time in Regents of the University of California v. Bakke, which unfortunately produced a split decision providing little useful guidance. The court held that a racial quota system that reserved 16 of 100 medical school seats for racial minorities at UC-Davis violated the rights of a white applicant who was denied admission despite better credentials than the minorities who were admitted, but it also stated race could be considered as one of many factors in order to promote diversity. Race is a “suspect classification” a state can take into account only if necessary and if “narrowly tailored” to further a “compelling governmental interest,” but the confusion spawned by Bakke centered on when and whether achieving diversity would qualify. As a practical matter, Bakke had no effect on existing preferences; colleges and universities continued to engage in reverse discrimination but were more subtle about it, eliminating naked quotas in lieu of “behind the scenes” preferences on the basis of race and ethnicity.
As a border state with mixed demographics, Texas faces political pressure to maintain a balanced student body at its flagship university, UT-Austin. (Texas maintains an extensive state-supported higher education system; UT-Austin is the most competitive.) Following Bakke, UT (and especially UT’s highly-selective law school) continued to grant significant preferences to black and Latino applicants at the expense of white applicants—a practice that was successfully challenged in a 1992 lawsuit brought by Cheryl Hopwood, a white applicant denied admission to UT’s law school even though considerably less-qualified minorities were admitted. UT vigorously fought the Hopwood case, prevailing in an eight-day bench trial before U.S. District Judge Sam Sparks in May 1994.
On appeal to the U.S. Court of Appeals for the Fifth Circuit, Hopwood scored the first victory in a legal challenge to a university’s affirmative action policy since Bakke. In a resounding opinion, the Fifth Circuit ruled in 1996 that the law school “may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body, to combat the perceived effects of a hostile environment at the law school, …or to eliminate any present effects of past discrimination by actors other than the law school.” The U.S. Supreme Court denied review. Despite UT’s unhappiness with the Hopwood decision, the state of Texas yielded to the requirement of color blindness in admissions at all state-supported institutions—sort of, and for the time being.
Excellence Increases, and Leaders Are Aghast
In the immediate wake of Hopwood, the percentage of UT-Austin’s entering freshman class who were black and Latino declined from 4.1 and 14.5 percent, respectively, to 2.7 and 12.6 percent respectively. Asian enrollment, however, increased by 20 percent. (Remember the concept of a zero-sum game; high-performing Asians are the ultimate victims of affirmative action.) The quota-conscious higher education establishment was aghast. Unwilling to accept the reduction in black and Latino enrollment resulting from a strictly meritocratic admission policy, in 1997 the Texas Legislature passed House Bill 588, the so-called Top Ten Percent Law, which grants automatic admission to UT to all students in the top 10 percent of their high school classes. Due to the heavily-minority composition of Texas’ urban school districts, this clever subterfuge introduced substantial racial, ethnic, and geographic diversity into UT admissions without explicitly considering race. The Top Ten Percent Law restored the sought-after diversity at UT to pre-Hopwood levels (and then some). But the Top Ten Percent Law still didn’t produce enough blacks to suit UT, and came at the cost of lowering the median SAT scores of the entering classes, so UT introduced a “holistic” admission component to supplement the top 10 percent.
In 2003, the U.S. Supreme Court re-addressed affirmative action in Grutter v. Bollinger, producing another badly-split decision (this one 5-4) that upheld the University of Michigan’s racial preferences with the controversial notion (advanced by Justice Sandra Day O’Connor) that race could be considered as a factor in admissions to achieve the mix of minority students necessary to realize the supposed educational benefits of diversity. The details were as elusive as the goal itself. The Grutter majority was tenuous and unstable, as evidenced by the fact that Justice Anthony Kennedy—normally a pivotal “swing vote”—dissented. While the Grutter rationale was inscrutable, the decision disapproved of Hopwood, leading UT to immediately renew the use of race in admissions—in addition to the 10 percent rule and “holistic” review. (Texas A&M University, Texas’ other major public university and UT’s main rival, chose to forgo racial preferences.) Of course, a legal challenge was inevitable.
Enter Abigail Noel Fisher, a white applicant not in the top 10 percent of her high school class, who sought undergraduate admission to UT for the 2008 entering class and was denied even though black and Latino applicants with lower GPAs and test scores were admitted. She sued, claiming that, unlike the University of Michigan, UT had already achieved the requisite diversity through the Top Ten Percent Law and therefore did not need to use race as a factor in admission decisions. Fisher lost in the trial court and at the Fifth Circuit, but appealed her case to the U.S. Supreme Court. Fisher’s prospects appeared to be good because in the meantime Justice O’Connor had retired and was replaced by Justice Samuel Alito, a critic of affirmative action.
In 2013, the Supreme Court decided Fisher. The result was mixed. In a 7-1 decision written by Justice Kennedy, the Supreme Court held that the Fifth Circuit had failed to apply Grutter correctly, but instead of ruling in favor of Fisher, they remanded the case to the Fifth Circuit for further review. Specifically, the Supreme Court held that the Fifth Circuit had inappropriately deferred to UT (at one point expressly presuming that UT had “acted in good faith”) and had not applied the demanding “strict scrutiny” standard to require UT to prove that its consideration of race was “narrowly tailored” and “necessary.” In other words, UT had to prove it could not achieve a sufficient degree of diversity without racial preferences. The Supreme Court instructed the Fifth Circuit to reconsider the case “consistent with this opinion.”
Courts Continue to Endorse Discrimination
On remand, Fisher contended that the post-Hopwood adoption of the Top Ten Percent Law eliminated the need to take race into consideration. On July 15, 2014, the same Fifth Circuit panel issued its decision on remand, this time with a dissent. By a 2-1 vote, the panel ruled in favor of UT, not only accepting its undefined goal of a “critical mass” of minority students, but agreeing that the Top Ten Percent Law was inadequate because the minority students it produced came largely from “majority minority” high schools. Judge Emilio Garza forcefully dissented, accusing the majority of impermissibly deferring to UT’s position: “At best, the University’s attempted articulations of ‘critical mass’ before this court are subjective, circular, or tautological.” Garza mocked UT’s position: “[T]he University says its goal is not boosting minority enrollment numbers alone [which was accomplished without the use of race by the Top Ten Percent Law], but rather promoting the quality of minority enrollment—in short, diversity within diversity.”
Judge’s Garza’s scathing dissent is an invitation for en banc review by the entire Fifth Circuit (which was narrowly denied in 2011) or reversal by the Supreme Court (which might overturn Grutter in the process) Fisher, whose legal challenge has been assisted by Edward Blum’s Project on Fair Representation, has vowed to exhaust all potential appeals. In the meantime, UT crows about its “victory” on remand. UT Austin President Bill Powers issued a statement, saying,“We are very pleased with the Court’s ruling…. We remain committed to assembling a student body at [UT] that brings with it the educational benefits of diversity….” In other words, UT will continue to discriminate on the basis of race until the courts finally step in and prevent it. How ironic, that liberal California prohibits race-based affirmative action at state colleges (thanks to Proposition 209), whereas the flagship university of the nation’s largest Red State, Texas, continues to expend vast taxpayer resources defending its right to discriminate against white and Asian citizens.
UT has gone full circle since Sweatt v. Painter, but ended up in the same ignoble place. Discrimination based on race is wrong, regardless of the claimed educational or societal benefits. The principle of color blindness often interferes with transitory political judgments regarding “desirable” public policy. The defenders of discrimination in Brown and Sweatt—like UT in Fisher–predicted dire consequences if denied the use of race. They were wrong. The educational benefits of “diversity” are a chimera, and Abigail Fisher was a victim of state-sanctioned discrimination. Her lawsuit seeks to vindicate important civil rights—making the schoolhouse door equally open to all, regardless of race. Sixty-four years after Sweatt v. Painter, Texas should stop discriminating on the basis of race, once and for all.
Mark Pulliam, writing from Austin, Texas, is a graduate of UT School of Law.