Throwback: Fisher v. UT has the seeds of deja vu

Reeana Keenen

When Abigail Fisher sued the University on the grounds that it violated the 14th Amendment by denying her admission because she is white, long-time administrators may have felt a sense of deja vu. Though federal cases involving the University are rare, this is not the first time a white student has sued the University over a denial of admission.

In 1992, Cheryl Hopwood, along with a few other white students, filed a lawsuit against the UT School of Law, claiming they were denied admission in favor of minority students who were less qualified. 

Before the Fifth Circuit Court of Appeals released its decision in 1996, the law school based admissions on what was called a Texas Index (TI) score, where applicants were given a rating based on their GPAs, LSAT scores and other qualifications. 

The Fifth Circuit found that because the TI ranges acceptable for minorities represented a significant advantage  for some minority applicants over white applicants, the law school’s admission policy was not justifiable. 

The court’s decision was the first decision to strike down an affirmative action program after guidelines for such programs were established in Regents of the University of California v. Bakke in 1978. In the Bakke case, the Supreme Court ruled that affirmative action policies in admissions must represent a compelling state interest to create diversity and that the policies must be narrowly tailored to this objective. 

In response to the Fifth Circuit’s decision, the University adopted the Top 10 Percent rule — which is still in place today — to allow minority students to have a chance to be accepted to UT by graduating in the top 10 percent of their high school class. 

The Daily Texan ran a point-counterpoint editorial piece on March 19, 1996, arguing the benefits and downfalls of both proposed legislation banning any consideration of race.

Marisol Espinosa, a journalism senior at the time, argued that affirmative action is meant to overcome racial discrimination by helping qualified minorities gain access to jobs and education experiences they would otherwise be excluded from. Espinosa said opponents of affirmative action often assume increased diversity comes at the cost of lower standards. 

“This complaint assumes the white male is naturally deserving of the job,” Espinosa said. “There also seems to be the assumption that the minority candidate is inherently less qualified.”

The counterpoint argument came from K. Danial Williamson, then an English senior. Williamson believed that affirmative action emphasized racial differences, rather than ameliorate their effects. “We have in simple language an elegant truth that has evaded many of our fellow citizens, politicians and practically all of higher education … our misnamed ‘affirmative action’ programs are simply racism and therefore must be abandoned,” Williamson wrote.

Williamson said he agreed the country had major racial problems to deal with but argued affirmative action was nothing but “political bait.”

“Giving a generous break on LSAT scores for black applicants to Harvard Law School would not remedy the fact that one out of three young black men is under the supervision of the criminal justice system,” he wrote. 

On Wednesday, the Fifth Circuit heard oral arguments for Fisher v. University of Texas after it was sent back to the circuit court by the U.S. Supreme Court over the summer. In many ways, the facts and the characters have changed, but the arguments at the heart of it are largely unchanged.