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History Lessons—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on nytimes.com on October 3, 2012.

History Lessons
By Linda Greenhouse ’78 MSL

Back in the fall of 2003, with the detainee population at Guantánamo Bay growing rapidly and the memory of 9/11 still fresh, the prospect seemed slight that the Supreme Court would choose to involve itself in the debate over the Bush administration’s policies toward those it labeled enemy combatants. The conventional wisdom was that the justices would simply deny the appeals recently filed on behalf of detainees who by then had been held for nearly two years without charges or access to lawyers. The question was whether the prisoners were even entitled to go to federal court to challenge their confinement.

I shared the general skepticism until I read a friend-of-the-court brief filed on behalf of the detainees in one of the cases, Rasul v. Bush. The name on the brief was familiar, yet came from a distant time and place: Fred Korematsu. Then 83 years old, Mr. Korematsu was a Japanese-American who as a young man had defied President Franklin D. Roosevelt’s World War II executive order under which some 120,000 men, women and children of Japanese descent, most of them United States citizens, were rounded up and sent to internment camps. The Supreme Court, to its shame, rejected Fred Korematsu’s challenge and upheld his criminal conviction, on the ground of wartime necessity.

Speaking to the justices from across the years, Mr. Korematsu, who received the Presidential Medal of Freedom in 1998 and died in 2005, reminded the court that it had made an error of historic dimension — not only in his case, but episodically throughout American history when the court sacrificed civil liberties to the perceived needs of national security. His brief implored the court: don’t make the same mistake again.

I have no idea whether this brief helped persuade the justices to hear the Rasul case and to decide, six months later by a vote of 6 to 3, that the Guantánamo detainees were entitled to a federal court hearing. But I thought of Fred Korematsu and his brief the other day when I read a Supreme Court brief in the new term’s big affirmative action case, filed by the daughter and nephews of a man named Heman Marion Sweatt.

Mr. Sweatt was an African-American native of Houston, a college graduate working as a letter carrier, when in 1946 he applied to the University of Texas Law School. He was informed that although he was otherwise qualified for admission, the school did not accept black students. Mr. Sweatt was directed to Prairie View State Normal and Industrial College, which had just been authorized by the state Legislature to teach to black students any graduate-level course that the University of Texas offered to whites. He declined the offer and, represented by the N.A.A.C.P. Legal Defense Fund, filed a lawsuit.

Brown v. Board of Education would not be decided for another eight years, and the separate-but-equal doctrine of the Supreme Court’s Plessy v. Ferguson decision from 1896 was still the law of the land. With Thurgood Marshall as one of the lawyers, Mr. Sweatt’s case eventually reached the Supreme Court. By that time, Texas had opened a new law school for black students. With a faculty of five, a tiny library and one alumnus who was a member of the bar, it was barely a shadow of the flagship state law school.

In Sweatt v. Painter, a unanimous opinion issued in June 1950, the Supreme Court made short work of the state’s argument that it was offering Mr. Sweatt and other black students all that the Constitution required. “It is difficult to believe that one who had a free choice between these law schools would consider the question close,” Chief Justice Fred M. Vinson wrote for the court, adding: “Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.” Chief Justice Vinson’s opinion, a short 14 paragraphs, concluded: “We hold that the Equal Protection Clause of the 14th Amendment requires that petitioner be admitted to the University of Texas Law School.” While the court stopped short of repudiating separate-but-equal, Mr. Sweatt’s case made the concept look preposterous and helped pave the road to Brown v. Board of Education.

The Sweatt family’s brief in the pending Supreme Court case, Fisher v. University of Texas, which the justices will hear next Wednesday, makes much of Chief Justice Vinson’s reference to “the interplay of ideas and the exchange of views.” It was, the brief maintains, “this court’s first recognition of the importance of diversity in higher education.” Perhaps so, although the Vinson court certainly didn’t imagine diversity as the modern Supreme Court has embraced the concept, first in the Bakke case in 1978 and then nine years ago in Justice Sandra Day O’Connor’s majority opinion Grutter v. Bollinger, upholding affirmative action in admission to the University of Michigan Law School.

The utility of the Sweatt family’s brief lies, rather, in the personal narrative and its powerful reminder of a world of not so long ago that the University of Texas is still trying to repair. Against the history recalled in the brief, it is remarkable to consider that it is now the state of Texas seeking to increase racial and ethnic diversity in its flagship university, fighting an uphill battle in an unfriendly Supreme Court.

Fisher v. University of Texas will be amply analyzed and dissected elsewhere in this newspaper, so I’ll limit myself to a few salient points. The first is that the Supreme Court’s purely discretionary decision last February to grant review in this case was an aggressive act of agenda setting. In this, it differed from the justices’ decision last term to hear the Affordable Care Act case; given that one federal appeals court had declared the federal statute to be unconstitutional while others had upheld it, it was incumbent on the Supreme Court to sort out the dispute. Although many people assumed otherwise, that grant of review was in most respects routine.

The Fisher case, by contrast, reflects no such conflicting views among the federal appeals courts. The United States Court of Appeals for the Fifth Circuit ruled that it was bound by Supreme Court precedent to uphold the University of Texas affirmative action plan. So the logical inference is that the current majority — Justice Samuel A. Alito Jr. having replaced Justice O’Connor — doesn’t like the precedent.

The Texas plan was challenged by a white applicant, Abigail Fisher, who failed to win admission to the Austin campus under either of the plan’s two components: she was not in the Top 10 percent of her high school class, and so did not qualify for the university’s “10 percent plan” that accounts for some 80 percent of admissions, and she was not one of the applicants selected through the alternative “holistic” review process that fills the rest of the class by considering race among a half-dozen other factors as part of a student’s entire profile.

The second point about this case is how Texas came to its complex two-pronged admissions process. After the Fifth Circuit struck down the state’s straightforward affirmative action plan in the Hopwood case in 1996, the state turned to the 10 percent plan as a way of maintaining diversity. While the 10 percent plan is fair and racially neutral on its face, it is both cynical and a mess. It provides diversity only because the public high schools in Texas are racially isolated, and to an increasing degree. More than half of all Latino students, and 40 percent of blacks, attend schools in which there are no or hardly any white students. The white enrollment in the San Antonio school district last year was 1.9 percent white, while school districts outside the major cities remain largely white. So the 10 percent plan shuts out well-prepared white students from wealthy school districts while, according to the state’s brief, many promising black and Latino students are lured away to the Ivy League and other private universities.

The state’s hands were tied until the Supreme Court ruled in the Michigan case that considering an applicant’s race as part of an entire profile served the state’s compelling interest in achieving diversity. “Compelling interest” is a term of art in equal protection doctrine. In order to pass muster under the 14th Amendment, a government program that takes race into account must be justified by a compelling interest and, further, has to be “narrowly tailored” to serve that interest. Once the Supreme Court upheld the Michigan program, the Texas regents decided to free the university, at least to a modest degree, from the randomness of the 10 percent plan by adopting the Michigan model for a small portion of the class.

Third salient point: this is where the heart of the challenge to the current Texas plan lies. The 10 percent plan concededly provides a measure of diversity. Consequently, the argument goes, the university’s compelling interest in diversity had already been achieved by using that plan alone. The “holistic” Michigan-style add-on was gratuitous, in constitutional terms not “narrowly tailored” to serve the diversity interest. In other words, under this argument, the situation is this: the 10 percent plan standing alone would be constitutional, and the Michigan-style plan standing alone would be constitutional. Put them together as Texas has done, and they fail the test.

Having taken the case, the justices have a variety of options. Maybe they will tell Texas to go back to the 10 percent. Maybe they will do what the plaintiff seeks implicitly and what some friend-of-the-court briefs on the plaintiff’s side ask openly: use this case as a vehicle to revisit the Michigan case and sharply cut back on it or overrule it. Simply affirming the status quo seems the least likely outcome.

As they proceed, the justices, or some of them at least, might hear the voice of Heman Sweatt, who died 30 years ago at age 70 and whose memory the University of Texas honors every year with a civil rights symposium in his name. One of the names on the family’s brief is that of Hemella Sweatt-Duplechan, M.D., a dermatological pathologist in Cincinnati. She is Heman Sweatt’s daughter. Her son, age 13, who won second place among all seventh graders in the country who took last year’s national Spanish test, will be at the Supreme Court next week, covering the argument for his school newspaper.