Point Austin: Justice Demands Affirmative Action

"The road is long, but it really hasn't been that long."
– From the amicus brief of the family of Heman Sweatt, first black student admitted to the UT School of Law in 1950

It's almost comical that, in a state where those residents defined as "minorities" are now in fact the majority, the state university should have to defend at the U.S. Supreme Court an admissions system designed to better reflect the actual diversity of the state's citizens. I say "almost," since the consequences in the real lives of Texans – of higher education denied – are often severe and multigenerational. But that's the continuing predicament we're in, as once again the court will have to decide whether to permit the university's extremely limited acknowledgment of our complicated racial history as one factor in admissions.

The university was sued in 2008 by two white applicants denied admission under either UT's Top Ten Percent Plan (enacted by the Legislature) or its supplemental admissions process. (One has since withdrawn from the suit; the other, Abigail Fisher, has since graduated from Louisiana State University, but remained a party – hence Fisher v. the Uni­versity of Texas at Austin, et al.). Roughly 75% of UT-Austin's students are now admitted as ranking in the top 10% of their high school classes, a standard that considers only class rank (and produces some racial diversity in part because the state's communities and therefore schools are so segregated). The rest are chosen from a pool in which reviewers also consider such factors as leadership, special achievements or talents, and racial and cultural diversity. The admissions process has been upheld by lower courts as meeting the Supreme Court's standard (established in a 2003 case, Grutter v. Bollinger) of limited use of racial factors; Fisher argues that any use of race is unconstitutional and that either Grutter should be overruled, or UT's admissions process rejected.

Based on the history and its relatively recent Grutter decision, it's a bit surprising that the court agreed to hear Fisher at all. The fact that it did so, and that its balance on affirmative action is in question – Sandra O'Connor, who wrote Grutter, has been replaced by Sam Alito, and Elena Kagan has recused herself – is cause for real concern.

Willfully Blind

The court will hear arguments in October, and amicus briefs began pouring in this week. As of Wednesday morning, 70 briefs had been filed in support of the university – from predictable allies like the NAACP, ACLU, and numerous human rights organizations, but also from many universities, military leaders, independent scholars, even basketball coaches. By contrast, the Fisher petitioners have drawn 17 supporting briefs, primarily from conservative legal groups, although Florida U.S. Rep. Allen "Dem­o­crats are Communists" West also weighs in on the "color-blind" side – all defending the notion that the only way we can achieve equality in public institutions is by pretending that race – in the United States, in 2012 – doesn't exist, or doesn't matter.

That would seem to be a remarkable historical standard, not just of color-blindness, but stone blindness.

That's my summary, of course, and I can't pretend to have read more than the central pleadings and a sample of briefs on both sides. Among the latter was one submitted in support of UT by 37 members of the Texas Legislature (and one nominee). All are Democrats, by the way, which doesn't speak terribly well of those Republicans who regularly swear permanent allegiance to the Burnt Orange – at least in football (long since preserved, of course, by affirmative action). Their brief, like UT's own, makes the argument that without some consideration of racial factors in admissions, the university can not ensure that "students, who will graduate and possibly one day become state legislators themselves, receive the full benefits of a broadly diverse educational program and environment."

What History Teaches

I follow that argument, as far as it goes, although in these briefs it sometimes appears to produce the corollary that the main beneficiaries of affirmative action are white students who eventually learn – in classrooms that are hopefully not quite as segregated as their high schools had been – that there are people in the world unlike themselves. I can't argue with that, nor with UT's summation that among the "educational benefits" of diversity are "promoting cross-racial understanding; breaking down racial, ethnic, and geographic stereotypes; and creating an environment where students do not feel like spokespersons for their race."

All these benefits are undeniable, yet it often feels that our contemporary emphasis on "diversity" (often necessitated by institutionally rigid "color-blindness") tends to deemphasize "justice" as a deeper and more permanent value. Our schools, and our universities, belong to all Texans. And as a matter of simple justice – not simply "diversity" – we have an obligation to educate all our citizens, as well and as equally as we can.

Those who advocate "color-blindness" would like to pretend that U.S. history on these questions began and ended with the passage of the Civil Rights Act, or maybe with the election of President Barack Obama. "Certainly all aspire for a colorblind society in which race does not matter," argues UT, "and need not be considered to ensure a diverse proving ground for the Nation's future leaders. But in Texas, as in America, 'our highest aspirations are yet unfulfilled.'"

Or, as the family of Heman Sweatt vividly remembers: "Race matters. In the real world, it still matters."

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Read more on Fisher v. Texas at www.utexas.edu/vp/irla/Fisher-V-Texas.html.

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