Ninety-one amici met the Aug. 14 deadline to file briefs in Fisher v. University of Texas at Austin, et al., a high-profile case that will be argued at the U.S. Supreme Court in October.

Of those, 72 amicus curiaebriefs were filed in support of the UT defendants and 17 supported plaintiff Abigail Fisher; two are for neither party.

The federal government, U.S. senators, and former UT student body presidents are among the amici supporting UT. The Cato Institute, Judicial Watch and the Asian-American Legal Foundation filed amici briefs in support of Fisher.

Two briefs submitted by Texas amici, however, stand out among the crowd: Represented by Allan Van Fleet, a partner in the Houston office of McDermott Will & Emery, the family of Heman Marion Sweatt supports the school in the case. Sweatt was the first African-American to attend the UT School of Law. A group of state educators that includes UT professors stands behind Fisher.

In the case, Fisher, who is white, alleges she was disadvantaged when The University of Texas System Board of Regents, UT and officials of both (the UT defendants) denied her admission in 2008 by following a policy that allowed for racial considerations. In her April 7, 2008, complaint, Fisher claimed that UT’s complex admissions policy — which takes into account the race of applicants who are not automatically admitted because they were in the top 10 percent of their public high-school class — violates the equal protection clause of the 14th Amendment. Texas’ Top 10 Percent Law, Texas Education Code §51.803, took effect in 1998. In 2004, the university added race as a “special circumstance” factor in admissions after a 5-4 U.S. Supreme Court ruled in Grutter v. Bollinger (2003) that public schools can consider race as one factor for admissions in their efforts to achieve diversity.

U.S. District Judge Sam Sparks of Austin granted the defense motion for summary judgment in Fisher on Aug. 17, 2009. On Jan. 18, a three-judge panel of the 5th U.S. Circuit Court of Appeals affirmed the constitutionality of UT’s consideration of race in its 2008 admissions process. The 5th Circuit denied en banc review.

In Fisher’s cert petition, she framed the question for the high court: “Whether this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.”

The UT defendants’ Dec. 7 brief in opposition stated that the high court should deny cert for four reasons: Fisher, who graduated in May 2012 from Louisiana State University, lacks the personal stake needed to pursue an injunctive remedy; Fisher’s petition alleges no split among the circuit courts of appeals; with Fisher’s admission in her petition that UT doesn’t have a specific racial goal set for its student admissions, she has “no room to argue” that “UT engages in blatant racial balancing”; and “[e]ven if members of this Court are inclined to reconsider Grutter, [Fisher's case] is a demonstrably improper vehicle, given the limited question presented, the fatal concessions that Fisher made below, and the intractable jurisdictional problems that plague her petition.”

But the high court granted cert in Fisher on Feb. 21. It will hear arguments on Oct. 10.

Fisher holds special significance for the relatives of Heman Marion Sweatt. In 1946, the UT School of Law rejected Sweatt’s application because he was black. Sweatt took his case all the way to the U.S. Supreme Court, arguing the Constitution gave him equal rights to be considered for admission to the only well-established law school in Texas. UT argued that since Sweatt could attend a newly opened all-black law school he did not need to be admitted to UT. But in 1950′s Sweatt v. Painter, Sweatt was victorious. A unanimous high court held that the 14th Amendment equal protection clause required that Sweatt be admitted to the UT law school.

In support of the UT defendants, Sweatt’s daughter and two of his nephews write in their Fisher amicus brief, “After years of steady integration . . . Texas schools are de facto resegregating. . . . It is against this backdrop that UT faces its mission as a flagship university to train students to engage and lead Texas’s increasingly diverse society.”

The Sweatt family members argue: “In Sweatt, this court first recognized that in higher education, the interplay of ideas and exchange of views among students are critical. . . . It was in Sweatt . . . that the court first found that diversity, including racial diversity, was a compelling component of effective higher education.”

The family describes the role then-U.S. Supreme Court Justice Tom Clark, a UT law school alumnus, played in Sweatt‘s outcome. Clark drafted a bench memo, “steering the other Justices away from counting bricks and books to consider what cannot be quantified,” the family writes in its amici brief.

The Sweatt family members became amici after Gary Lavergne, UT director of admissions research and policy analysis, discussed the idea with Patricia “Patti” Ohlendorf, vice president for legal affairs at UT, Lavergne says. Lavergne, who wrote “Before Brown: Heman Marion Sweatt, Thurgood Marshall and the Long Road to Justice” published in 2010, says he knew the family from his book research so he contacted them about filing a brief. Van Fleet says Ohlendorf talked to him about representing the Sweatt family.

Ohlendorf and Van Fleet met in the 1990s when Van Fleet was one of the Vinson & Elkins lawyers representing the university in Hopwood v. Texas. In that case, Sparks held that the UT law school could consider race as a criterion for admissions. Cheryl Hopwood and other white plaintiffs appealed and won at the 5th U.S. Circuit Court of Appeals, which in 1996 reversed Sparks and held that the 14th Amendment did not permit “the school to discriminate” in favor of admitting African-Americans and Hispanics.
 

The U.S. Supreme Court denied cert in Hopwood and UT abided by a race-neutral admissions policy until the high court decided Grutter.

Ohlendorf did not return a telephone call and an email seeking comment.

Van Fleet says once he agreed to represent the Sweatt family members, he talked to Lavergne, read his book and discussed the case with his clients, Sweatt’s daughter Dr. Hemella Sweatt-Duplechan and nephews Dr. James Leonard Sweatt III and Heman Marion Sweatt II.

“I went to law school for this kind of stuff,” Van Fleet says. As a kid, he and his family had lived overseas on military bases, but when he was in the third grade in the early 1960s, his family moved to Huntsville. That’s where he says he encountered segregated schools for the first time and learned of their harm.

Heman Marion Sweatt II says he attended UT-Austin in the late 1960s, but left. He graduated from UT-Arlington. He recalls feeling isolated and disliking his time at UT-Austin, when he says fewer than 300 of the school’s 40,000 students were African-Americans.

He believes the family’s brief in Fisher will help emphasize historic shortchanging UT gave blacks. “I personally feel that UT needs to work on its image with minorities, especially among blacks; it’s still considered a white university,” he says.

TAS Amicus

While the Sweatt family supports the university as amici, UT constitutional law professor Lino Graglia is supporting Fisher. Graglia, who signed on to an amici brief filed by the Texas Association of Scholars (TAS), says, “I am entitled to have a contrary opinion.”

Graglia, an opponent of affirmative action who has taught at the UT law school for 25 years, belongs to TAS, a group of 100 members who teach at college campuses statewide.

Pro bono counsel Joel Mandelman of Arlington, Va., who served in the Reagan Administration as deputy general counsel to the U.S. Commission on Civil Rights, wrote the TAS brief. The group alleges that the Top Ten Percent Law is “a de facto quota system” and “diversity is not a state interest, let alone a compelling one. It is merely a euphemism for racial quotas.”

“The critical, unspoken, issue in this case is the undermining of merit as the outcome determining factor of success in American life,” the TAS writes.

TAS argues that UT “instituted its challenged policies to protect its institution’s political interests” and the university is “currying favor with minority populations — and politicians — who now account for 48.1 percent of Texas’ population.” TAS also argues that “no quantifiable educational benefits” stem from “diversity.”

“The record is devoid of validated studies, to substantiate what are, at essence bogus, politically motivated, assertion[s] as to diversity’s value. . . . The University’s theory also implicitly assumes that all African-Americans or all Hispanics have a uniform point of view about major issues that substantially differs from those held by white students. . . .”

TAS president Robert Koons, a UT professor of philosophy, says in the 1980s his group and its national parent organization, the National Association of Scholars, came into existence in part in reaction to “reverse discrimination.” Koons says TAS decided to file an amicus brief in Fisher because members wanted to put before the high court “a principled statement that wasn’t fine-tuned to reflect recent decisions.” Specifically, the TAS brief calls for the elimination of racial considerations in UT admissions when students are not automatically accepted under the Top Ten Percent Law and for the elimination of the law itself.

Bert Rein, a partner in Washington, D.C.’s Wiley Rein who represents Fisher, writes in an email that he expects Fisher’s response, which is due on Sept. 6, “will deal with the amici as well as UT.”

Amici for UT case

Editor’s note: The above story has been corrected to note that in Hopwood v. Texas, U.S. District Judge Sam Sparks held that the University of Texas law school could consider race as a criterion for admissions. Cheryl Hopwood and other plaintiffs appealed and won at the 5th Circuit. We regret the error.