This October, the University of Texas at Austin will find itself up against a familiar and formidable adversary. No, the contest won’t happen on a football field against the University of Oklahoma. Instead it will play out in the august chambers of the U.S. Supreme Court, and the battle will be over the meaning of the Fourteenth Amendment, which reads in part, “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” The equal-protection clause, as it is known, is at the center of one of the most confounding issues in American jurisprudence: affirmative action. And no institution has been more confounded by the subject than UT.
The Supreme Court has dealt with the issue of race in college admissions in five separate cases over the past 65 years; remarkably, three of them have involved UT, including the current lawsuit: Fisher v. The University of Texas at Austin, which could change the legal landscape for college admissions across the country. The concept of affirmative action dates back to the Kennedy and Johnson administrations, and it is built on a paradox. It employs a measure of inequality today in the hope of achieving greater equality in the future. Back in the sixties, the hope was to level the playing field and help make up for the disadvantages encountered by members of particular minority groups, who had been discriminated against for generations. No one dreamed that, just a decade or so later, affluent white students would claim that they were victims of reverse discrimination.
But that’s the argument that Abigail Noel Fisher, a white applicant to UT, is making. She was an eighteen-year-old high school senior in Sugar Land when she applied for admission in 2008. At Stephen F. Austin High School, she ranked 82nd in a graduating class of 674 students and earned a grade point average of 5.11 on a scale of 6.0. Her application cited numerous extracurricular activities and volunteer efforts. In short, she was the kind of student most colleges would be happy to have on their campuses. Instead, UT turned her down, even though it had accepted less-credentialed minority applicants.
The irony of this is that UT was once at the center of a landmark case, Sweatt v. Painter, that helped break the back of racism in college admissions. Segregation was still the law when Heman Sweatt, who was black, applied to the University of Texas School of Law, in 1946. He