The Admissions Equity Struggle: Fisher Case Is Latest in a Long History of Texas Legal Battles over Race's Role in Higher Education

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It has been a long, litigious road from Heman Sweatt, an African-American mail carrier who wanted to attend the prestigious, all-White law school at the University of Texas at Austin in 1946, to Abigail Fisher, a White high school student who failed to win undergraduate admission to the same university a half-century later.

Depending on what the U.S. Supreme Court decides after hearing arguments this fall, the cases of Sweatt and Fisher may prove to be bookends in the battle over affirmative action at the flagship institution of the University of Texas system, a battle with wide ramifications for minority admissions to public colleges across the country.

Sweatt's battle began when his application was rejected solely based on race. Unsuccessfully pursuing his goal in the state courts, he told the Houston Informer, "All I can say is that I still want ONE SEAT in the university's law school." Meanwhile, the Legislature scurried to create an all-Black alternative, the unaccredited School of Law at Texas State University for Negroes.

With the backing of the NAACP, Sweatt turned to the Supreme Court, where Thurgood Marshall and W. J. Durham argued his case. Arrayed against them in defense of UT's all-White admission policy were not only the Texas attorney general but also the states of Florida, Georgia, Kentucky, Mississippi, Louisiana, Oklahoma, Tennessee, South Carolina, Virginia, Arkansas and North Carolina as friends-of-the-court.

Although the Supreme Court fell short of overturning its infamous 1896 separate-but-equal decision in Plessy v. Ferguson as civil rights advocates hoped, it unanimously found that UT and the new law school "for Negro students" were not substantially equivalent and, thus, violated the Constitution's guarantee of equal protection of the law.

After listing such inequalities as faculty size, library and course offerings, Chief justice Fred Vinson wrote, "What is more important, UT Law School possesses to a far greater degree qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige."

Sweatt called the court's 1950 order that UT admit him "a milestone in the progress of applied democracy."

Sandwiched between the Sweatt and Fisher bookends was another landmark reverse-discrimination suit by four White in-state applicants challenging their 1992 rejection by the UT law school. In that case, Hopwood v. Texas, the U.S. 5th Circuit Court of Appeals struck down the university's admissions policy that it characterized as adopted "with the best of intentions" but which unconstitutionally gave "substantial preference" to Mexican-American and African-American applicants compared to "Whites and non-preferred minorities."

In response to the Hopwood litigation, the Legislature in 1997 enacted the race-neutral Top 10 Percent law entitling all Texas high school seniors in the top 10 percent of their graduating class to automatic admission to any state university.

To supplement that law, UT developed a system to evaluate applicants who fall below the top 10 percent. It is based on an academic index that combines class rank and standardized test scores and a personal achievement index that includes awards, work experience, community service and "special circumstances" such as students' socioeconomic background and a high school's socioeconomic status.

Fisher sued after she fell short of Top 10 Percent status and wasn't selected for the 2008 application cycle based on the university's evaluation of the other indices. That cycle's cohort of 6,322 newly enrolled Texas residents included 27 percent Hispanics and Blacks. …