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 -- 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 said 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 colleges have grown more integrated. 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."
The Michigan case wasn't a slam dunk for the civil rights movement. The court also 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," 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 say 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."
If the Supreme Court rules that the university went too far in using racial preferences, 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." After the Supreme Court upheld the University of Michigan's affirmative action program, the University of Texas again began factoring race into admissions.
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