Students for Fair Admissions is at it again.
The non-profit organization opposes racial preferences in admissions on grounds that they violate equal protection principles. More than two years ago SFFA, which claims 21,000 students and parents as members, filed lawsuits challenging preferences in admissions at Harvard University and the University of North Carolina at Chapel Hill—both of which cases are ongoing. This summer SFFA has initiated another lawsuit against preferences in admissions, and the defendant is the University of Texas at Austin.
UT Austin has been in this position before. In Fisher v. Texas, it defended its use of race in admissions in lengthy litigation, finally prevailing in the Supreme Court last year with Justice Kennedy writing the majority opinion. SFFA takes on basically the same admissions policy that the Court upheld in Fisher. But it doesn’t challenge Kennedy’s opinion for the Court, as it would be doing if it had filed its case in federal court under federal law. Instead SFFA filed in state court under state law, having decided it makes no sense to be in federal courts re-arguing the federal law of racial preferences when it has a better option—the state option.
In 1972 Texans passed a state constitutional amendment that says: “Equality under the law shall not be denied or abridged because of sex, race, color creed, or national origin.” The measure was intended to establish more expansive protection against discrimination than was then available under the equal protection clauses of the federal and Texas constitutions. SFFA is betting that the Texas Supreme Court, which is more conservative than the U.S. Supreme Court, will not be inclined to read into the state constitution what is clearly not there—legal doctrine that supports preferences in admissions. The case will be a state case, and it could have implications for other schools in Texas that have preferential policies.
How many such schools there are is unknown. But as the case goes forward, it may help answer that question, even as it advances principles of non-discrimination and equal protection. The case deserves close watching, even by non-Texans.
Terry Eastland is a contributing editor at The Weekly Standard.
