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 was rejected solely because of his race, so he filed a lawsuit. The state responded by establishing a law school in Austin and Houston for blacks that would meet the “separate but equal” standard, but the court dismissed the state’s argument on the grounds that the schools were inadequate because of obvious shortcomings. It ordered UT to admit Sweatt to its law school in 1950.
Sweatt v. Painter may seem like ancient history, but it remains relevant for an important reason. The Supreme Court anticipated the future course of affirmative action law by recognizing the need for diversity: “The law school cannot be effective in isolation from the individuals and institutions with which the law interacts,” the justices wrote. “The law school to which Texas is willing to admit petitioner excludes from its student body members of the racial groups which number 85 percent of the population of the state and include most of the lawyers, witnesses, jurors, judges, and other officials with whom petitioner will inevitably be dealing when he becomes a member of the Texas Bar.”
More than forty years would pass before UT’s next encounter with the courts over affirmative action. This was the Hopwood case, which was decided in 1996. At that time, the standard concerning affirmative action had been proclaimed in a 1978 Supreme Court case called Regents of the University of California v. Bakke. In that suit a white student named Allan Bakke was denied admission to a state medical school, despite having higher scores than many minority applicants. The court split the baby, ruling that the school’s rigid quota system, which set aside sixteen spots for black students, was unconstitutional but that race could be used as a factor in admissions.
Cheryl Hopwood changed all that. A white female, she sued the UT law school in 1992 after she was refused admission. Hopwood and her three co-plaintiffs had better combined scores on the Law School Admission Test than 36 of the 43 Hispanics and 16 of the 18 blacks admitted. The federal district court allowed UT to continue to use affirmative action, but the Fifth Circuit Court of Appeals overruled the lower court, holding that race could not be used as a factor.
The ruling was a clear case of judicial activism. The Fifth Circuit went far beyond anything that the Supreme Court had said. UT appealed, but the Supreme Court declined to hear the case on narrow grounds. Though the ruling applied only to the states within the jurisdiction of the Fifth Circuit (Texas, Louisiana, and Mississippi), Hopwood struck fear in administrators everywhere. UT president Robert Berdahl issued the grim prediction that the case would lead to “the virtual resegregation of higher education.”
That this did not happen was largely because the Legislature passed the top 10 percent law in 1997. Lawmakers solved the diversity problem by granting automatic admission to state universities for high school students who graduated in the top 10 percent of their class, some of whom were minorities from large urban high schools. For the other remaining slots, UT took into account the characteristics of each student—leadership, extracurricular activities, honors, and community service—but not the forbidden categories of race or ethnic origin. By 2003, UT was enrolling more minority freshmen than it had since Hopwood was decided without using race as a criterion.
And that is where matters stood until the Supreme Court decided the Michigan case of Grutter v. Bollinger that same year. The court tried to have its cake and eat it too. It reaffirmed that a core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination. But it also held that “universities have a compelling interest in student body diversity” and allowed colleges to consider race or ethnicity in their admissions process so long as it was “narrowly tailored”—one of those open-ended phrases that one learns in law school, which can mean whatever a court wants it to mean.
Grutter trumped Hopwood, and all of academia breathed a sigh of relief. Affirmative action was once again the law of the land, and UT recast its admissions policy under the top 10 percent law to include the consideration of race to fill its remaining undergraduate slots. Fisher, who was in the top 12 percent of her class, was one of approximately 16,000 students chasing 1,216 spots in the freshman class, leaving her on the outside looking in. She contends that UT violated the Fourteenth Amendment because it “failed to consider and take advantage of alternative race-neutral means of achieving diversity.” In effect, her claim is that the top 10 percent law was so successful at ensuring diversity, UT shouldn’t employ a race-based policy for the remaining applicants.
And so UT heads for the precipice, carrying with it the support of universities everywhere that employ affirmative action. Fisher does not simply seek a ruling that UT and other universities must modify their admissions policies to conform to some as-yet-unknown standard to be adopted by the court. Instead, Fisher seeks to employ the nuclear option—one that could turn Berdahl’s concern about the resegregation of higher education into reality. Fisher seeks nothing less than a finding by the Supreme Court that Grutter was wrongly decided and “should be clarified or reconsidered to restore the integrity of the Fourteenth Amendment’s guarantee of equal protection.”
Is there a reasonable solution to the dilemmas posed by this case? I believe there is. First, we should start with the principle that no one has a “right” to attend a university. Rather, a university should be free to select the number and types of students it wants. If a school seeks to admit more minorities because it believes diversity adds value to education, it should be able to do so without fear of a lawsuit. Second, we need to recognize that merit—as defined by standardized tests—is an ambiguous standard at best and should not confer rights on some individuals and take them away from others. Just because one person scores a few points higher on a test than another, that is not reason enough to grant or deny admission. Third, we need to acknowledge that the Fourteenth Amendment’s guarantee of the equal protection of the laws was never intended to apply to cases like Fisher, which, if decided in the plaintiff’s favor, would protect the more privileged at the expense of the less privileged—the exact opposite result from that originally intended by the amendment’s authors, who wanted to counteract the Black Codes adopted by Southern states during Reconstruction.
The alacrity with which the Supreme Court agreed to hear Fisher is an ill omen for UT and proponents of affirmative action. The current conservative majority has an activist bent (remember Citizens United) and strong ideological leanings. One could reasonably infer that the majority sees in Fisher the chance to erase Grutter. The ultimate question is not one of law. It’s one of politics: Does the court dare turn back the clock on minority advancement and squelch the aspirations of a new generation of young Americans?