Thursday, August 16, 2012

Texas is Different: Amicus Briefs In Fisher v. Texas

Several of the amicus briefs filed on Monday in Fisher v. Texas, the case challenging the admissions policy of the University of Texas, focused on legal history.   
The family of Heman Sweatt, the plaintiff in the landmark case, Sweatt v. Painter, 339 U.S. 629 (1950),  emphasized legal and social history. In Sweatt, the Court ordered the admission of the plaintiff, a black man qualified for admission to UT's Law School but denied entry on account of race, on grounds that his exclusion violated the Equal Protection Clause.  (Heman Sweat  can be seen on the right, on the cover of Gary Lavergne's Before Brown, noted earlier here and here).

The Sweatt family's brief begins:

Amici curiae are the daughter and nephews of Heman Marion Sweatt, who in 1946 was denied admission to The University of Texas Law School for one reason: “the fact that he is a negro.”  Texas law forbade UT from considering any of his other qualities: not his intelligence, not his determination, not the grit he gained living under and fighting Jim Crow. ...
Today, UT honors the legacy of Heman Sweatt in many ways, none more important than its commit-ment to creating a genuinely diverse student body. It does so through an admissions policy that considers (to the extent allowed by the Texas Top Ten Percent Law, which depends on secondary-school segregation to increase minority enrollment) all aspects of an applicant’s character – including, in part, how that character has been shaped by race.

The Sweatt Family submits this brief to recount Heman Sweatt’s story in the context of Texas’s long and continuing history of segregation in education and to support UT’s use of a holistic admissions policy as a narrowly tailored means of fulfilling its mission to prepare students to engage and lead Texas’s diverse society.

The Sweatts' brief is available here.

Another brief, which I authored, along with my colleague, Lani Guinier, places the constitutional issues in Fisher in historical context. The brief begins:
Fisher v. Texas is unlike any affirmative action case this Court has ever confronted.  For the very first time in history, the U.S. Supreme Court is asked to rule on the constitutionality of an admissions program designed to increase racial diversity at a university located in a southern state—Texas. 
The history of Texas and of the University of Texas (“UT”) distinguishes the present case from DeFunis v. Odegaard, 416 U.S. 312 (1974)Regents of the University of California v. Bakke, 438 U.S. 265 (1978), and Grutter v. Bollinger, 539 U.S. 306 (2003). The aforementioned cases all involved universities located in the North or West that lacked a history of state-mandated segregation.  Fisher arises out of a profoundly different context.
This brief, field on behalf of our client, the Advancement Project, can be found here. (All briefs in the case are available here).  For those interested in my views on historians as amicus filers, see my earlier post, "Say Something Historical."  My expertise in legal history is not the sole influence on my take on Fisher, however. I also teach and write in the areas of constitutional and education law; my views about Fisher and willingness to represent a client in the case also are informed by my work in those two areas. In fact, at the invitation of the Vanderbilt Law Review, I wrote a Supreme Court preview essay about Fisher. That essay, available here, does not mention history at all; instead, it focuses on constitutional law and education policy.

The U.S. Supreme Court will hear arguments in Fisher in its upcoming term. 

5 comments:

Anonymous said...

But most of the beneficiaries of UT's program are Hispanics, primarily Mexican Americans who are or are descended from post 1965 (and post-segregation) immigrants.

Tomiko Brown-Nagin said...

Hi there,
Embedded in your comment is an important point of which I'm well aware: the history of blacks at UT and in Texas is distinct from that of Latinos, although the latter group also has been subject to discrimination. To the extent that the policy benefits blacks, the history of discrimination against that group seems relevant to the question of whether that policy is constitutional.

I think the record is unclear on who the "beneficiaries" of UT's holistic race-conscious admissions policy are. On that point, take a look at the Petitioner's Brief). That said, for a variety of reasons, it's probably true that other groups benefit along with or more than blacks from "affirmative action." That, however, is nothing new.

In any event, it's not my purpose in this post or elsewhere to make all-encompassing arguments in favor of AA.

Anonymous said...

Thanks for the response. From eyeballing the statistics, it appears that African enrollment increased 3 percentage points, Hispanic enrollment about 7. White enrollment was almost constant percentage-wise, while Asian American enrollment declined significantly. Your history is certainly interesting, but it's only tangential to what's going on in Texas, which mostly involved one group of post-65 immigrants taking seats from another.

Tomiko Brown-Nagin said...

I'll take interesting over its opposite any day!

I'll close our conversation with a few brief thoughts. I,of course, disagree that the particular history that I emphasize is or should be considered tangential to the Court's race discrimination doctrine. To be sure, it's true that the Court's turn to "diversity" as the primary rationale for AA typically IS divorced from matters of history (although it needn't be). That doctrinal turn entails costs as well as benefits, as I've written before and now reiterate. One cost relates to the extent to which difficult questions about history, discrimination, and who should benefit from AA are closed down when ill-defined notions of "diversity" dominate the conversation. I've shared these concerns in previous scholarship.

I agree that demographic shifts in Texas and in the nation and their real or perceived impact on access to higher education animate many observers' keen interest in UT's admissions policies.

TBN

Shag from Brookline said...

The extensive history, facts, of the treatment of African Americans and Latinos by the state of Texas and UT from the Civil War to only just recently with the adoption of UT's new, finally redemptive, policy, is eye-opening. Indeed, Texas is different.