The spirit of the late Heman Sweatt will be inside the Supreme Court this week when the justices consider whether the University of Texas-Austin campus that he first integrated in 1950 has carried its system of racial preferences too far.
That's the argument posed by Abigail Fisher, who contends that her application for admission in 2008 was rejected because of her skin color: white.
Sweatt probably could relate to that. He sued the university after being blocked from admission in 1946 because he was black. Today, his descendants say, racial preferences are still needed to guarantee equal opportunities for minorities.
Both sides will be in court Wednesday when the justices take up Fisher v. University of Texas and the underlying issue of affirmative action that still divides the nation -- more than a half-century after Sweatt made civil rights history.
"Fisher gives the Supreme Court the opportunity to clarify the boundaries of race preferences in college admissions — or, perhaps, eliminate them altogether," says Edward Blum, director of the Project on Fair Representation, which fights in court against the use of racial and ethnic preferences.
The court has taken a turn to the right since its last ruling upholding affirmative action in 2003. Five justices are on record opposing the practice. That could mean defeat for the university — and, possibly, a sweeping declaration that racial preferences are unconstitutional, not only at public universities but also at private schools such as Harvard and Yale because they receive federal funds.
"I would hate to see that happen," says Heman Marion Sweatt II, 62, a nephew of Heman Sweatt and a University of Texas graduate. "A lot of people feel that affirmative action is not needed anymore. I would love to see the day when affirmative action is not needed, but realistically, it still has to be dealt with."
On the flip side of that argument is Fisher, a plain-spoken young Texan denied entry into her father's and sister's alma mater. She says racial preferences made her a victim of discrimination.
"There were people in my class with lower grades who weren't in all the activities I was in who were being accepted into UT, and the only other difference between us was the color of our skin," she says in a video posted by the Project on Fair Representation to make its case. "For an institution of higher learning to act this way makes no sense to me."
The vast majority of higher education groups say it makes a great deal of sense. In brief after brief submitted to the Supreme Court in support of the Texas flagship university, organizations representing nearly all facets of higher learning – including public research universities, Ivy League schools, undergraduate and law students, even college basketball coaches – argue that colleges and universities must be allowed to consider race and ethnicity in admissions to achieve the educational benefits of a diverse student body. Some say nothing less than the nation's future is at stake.
The United States "is in the midst of a perfect storm of economic crisis, rapidly shifting demographics and lagging educational achievement compared to other nations," says University of Missouri higher education professor Roger Worthington, editor of the Journal of Diversity in Higher Education. "If we do not fix the underlying educational disparities that exist in this country, there is no path forward to regaining our competitiveness on educational or economic grounds."
Denied because 'he is a negro'
Before the landmark Brown v. Board of Education case of 1954 — the unanimous court decision striking down public school segregation — and a series of cases on racial preferences leading up to Fisher, there was Sweatt v. Painter.
It was a simple case. Sweatt had sued the university and its president, Theophilus Painter, for denying him admission to the UT law school in 1946 because, as Painter pointed out at the time, "of the fact that he is a negro."
To represent him before the Supreme Court, Sweatt chose Thurgood Marshall, who would go on to become the court's first black justice. He won the case based on another "fact" — that he could not get an equally sound legal education elsewhere in Texas. It was the first time the court had ordered a black student admitted to an all-white institution.
Sweatt left the law school before graduating, the victim of chronic health problems and a divorce. But his case may be more relevant to the court's consideration of Fisher than most of the cases that have followed, including Brown.
Today, those rulings have become victims of their own success. Schools and universities have grown more integrated, however haltingly. In Grutter v. Bollinger, the court's 5-4 decision upholding the University of Michigan Law School's limited use of affirmative action, Justice Sandra Day O'Connor predicted, "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
The Michigan case wasn't a slam dunk for the civil rights movement. At the same time, the court ruled 6-3 against the university's more numerical system of racial preferences for undergraduate admissions. And the O'Connor decision included a dissent from Justice Anthony Kennedy that takes on added weight today: Since her retirement, he has become the swing vote.
"Preferment by race, when resorted to by the state, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality," Kennedy wrote in Grutter.
Kennedy's significance as the man in the middle hasn't been lost on lawyers for Fisher and the university. They mention him by name 50 times in their three main briefs.
Fisher's lawyers contend that the university seeks "racial balancing," something Kennedy clearly doesn't sanction. "Racial balance is not to be achieved for its own sake," he wrote in a Georgia desegregation case in 1992.
The school's lawyers point out that in using race as one factor, the university isn't resorting to quotas or numerical targets, which Kennedy disavowed in his Grutter dissent. They say the lawsuit "is just asking this court to move the goal posts on higher education in America and overrule its precedent going back 35 years."
The makeup of today's court is notable for other reasons. O'Connor's replacement is Justice Samuel Alito, a firm conservative who argued against affirmative action in the 1980s while serving in the solicitor general's office under President Ronald Reagan. On the left, Justice Sonia Sotomayor has called herself a "product of affirmative action" because of her admission into prestigious Ivy League schools despite less than stellar test scores. Justice Elena Kagan has recused herself from the case because of her previous involvement as solicitor general in 2009-10.
Colleges could 'lose out on a lot of great kids'
If the Supreme Court rules that the university went too far in using racial preferences, most experts predict the campus could see a drop in black and Hispanic enrollments, just as it did after the 5th Circuit Court outlawed a race-conscious admissions policy used by the University of Texas School of Law in 1996. A year later, state legislators created the "Top 10 Percent" plan, through which students in the top 10% of their high school graduating class are automatically admitted to the state university of their choice.
That law has helped schools boost racial diversity, primarily because most of the state's public high schools are segregated by race and ethnicity, but not enough to achieve a "critical mass," school officials said. After the Supreme Court upheld the University of Michigan's affirmative action program, the University of Texas again began factoring race into admissions.
If the justices decide more broadly that extra measures designed to boost racial and ethnic representation on campus are unconstitutional or no longer necessary, the nation's most selective universities, public and private, will lose a long-standing tool aimed at furthering their mission to prepare a diverse pool of well-trained graduates for leadership roles.
A ruling against the University of Texas, or more broadly, the consideration of race in admissions, also threatens to upend a tradition by the court of deference toward university decision-making, says
Ada Meloy, general counsel of the American Council on Education, a non-profit umbrella group that represents higher education institutions in Washington. She says colleges will remain committed to that goal even if Texas loses the case.
"It is so important to the vast majority of higher education institutions to be able to assemble the kind of student body that they think best fits their mission," she says.
Some of those who have petitioned the court on Fisher's behalf say colleges don't deserve that freedom. They argue that Jews, Asian Americans and others have been discriminated against in the past because of their academic talents, and nothing prevents such discrimination from extending to others in the future.
"Over their history, colleges and universities have often fallen prey to fashionable race discrimination," says a brief submitted by California and Connecticut faculty members and scholars, among others, who urge the court to overrule the University of Michigan decision. "Consequently, they are unlikely candidates to receive special deference on matters of race."
Colleges would probably turn to race-neutral alternatives used by public universities where affirmative action has been banned, Meloy says.
Already, public universities in Texas, California and other states have stepped up recruitment in high schools where the student body is made up predominantly of underrepresented minorities, established partnerships with schools to improve the pipeline of minority students, and established scholarships.
The University of Georgia, Texas A&M University and the University of California system have dropped preferences for children of alumni, which tend to favor white students from relatively affluent families.
Colleges also might de-emphasize or eliminate an admissions requirement for standardized test scores, on which black and Hispanic students tend to score lower than white and Asian students.
In a study this month by the non-profit Century Foundation, author Richard Kahlenberg argues universities should accept that affirmative action has run its course and replace racial preferences with class-based preferences. Schools could put more weight on factors such as parental income, parents' education levels and resources available in the community where they live, he says.
Studies of the University of California system, where racial preferences have been banned since 1996, suggest that such measures alone would not be sufficient. At the University of California-Los Angeles, for example, African-American students represented 6.7% of its freshman class in 1995, but only 3% in 1998 and 3.6% last year despite multiple race-neutral strategies.
"All of our efforts in terms of outreach have not made an impact," says Youlonda Copeland-Morgan, associate vice chancellor of enrollment management. "Race matters."
In Del Valle, Texas, a predominantly black and Hispanic community east of Austin, Del Valle High School college counselor Sarah Mabry says many of her brightest students have overcome great obstacles to get to the point where they would even consider applying to a prestigious school such as the University of Texas.
"Let's give everybody the chance they deserve," she says. "For God's sake, this is America."
That's just why others argue against racial preferences — to protect the rights of Fisher and others who they say are victims of discrimination when universities ignore their superior qualifications.
"Nowhere in the Constitution or the Declaration of Independence does the word 'diversity' appear," a group of Texas faculty members argue in a brief supporting Fisher. "There is no constitutional basis for the courts, let alone a state university, to engage in such a radical restructuring of America, allocating education, jobs and contracts based on race."
If the Texas plan is declared unconstitutional, Marie Bigham, director of college counseling at the highly diverse Greenhill School in the Dallas suburb of Addison, predicts a chilling effect.
"My students of color, I worry they're going to say that 'these places don't value what I bring,'" she says. White students, too, will look elsewhere, she says. "When my students are shopping for colleges, (diversity) is an important data point for them. We're going to lose out on a lot of great kids."
'I didn't take this sitting down'
Among those either siding with Fisher or making the case against affirmative action programs are scholars who argue that racial preferences hurt those they are supposed to help.
Gail Heriot, one of three members of the U.S. Commission on Civil Rights to file a brief supporting Fisher, points to studies showing that minority students frequently falter at the toughest schools and in the most rigorous fields of study. Admitting them to Princeton rather than Penn State isn't always in their interest, she says.
"Grades matter more ... than eliteness of law school," says Heriot, a law professor at the University of San Diego School of Law. Minority students, she says, often should "thumb their nose at Princeton and go to a school where they're going to be a success."
That's the view of Richard Sander, a UCLA law professor and economist who studies the effects of racial preferences. He argues in his book, Mismatch, co-authored with Washington journalist Stuart Taylor Jr., that generous preferences from elite schools often doom students to failure.
"Our whole focus is on what will work," Sander says. "We're trying to make this a pragmatic discussion. It's been a very ideological discussion."
On the other side, the 73 briefs filed in support of the university's position include those from business executives, government officials and retired military leaders who say their fields need college affirmative action programs to provide a stream of qualified minority applicants. Several cite a 2009 study by retired Princeton University president William Bowen that shows low-income and minority students who enroll in academically demanding institutions are more likely to graduate than students with similar academic qualifications who enroll in less challenging colleges.
A brief filed by several Fortune 100 companies argues that affirmative action programs are "more important today than ever" because of a "country and world economy that are increasingly diverse."
Another filed by former military leaders, including Colin Powell, Michael Mullen and Wesley Clark, warns that ending the practice "would seriously disrupt the military's efforts to maintain military cohesion and effectiveness."
An end to racial preferences also would come as a setback to Sweatt's descendants — among them his daughter, who is a pathologist; another nephew, who is a doctor; and a 13-year-old grandson, who will be in court taking copious notes for his school newspaper.
"If you have to ask somebody, 'Do we need affirmative action?' then I think that answers the question itself," says nephew Heman Marion Sweatt II.
Fisher, who graduated this year from Louisiana State University and is working in Austin as a financial analyst, couldn't disagree more.
"If people say anything about me, I hope they say I didn't take this sitting down," she says in the video. "I didn't accept the process, because the process is wrong."
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