Plaintiffs have filed a new lawsuit challenging the University of Texas at Austin's race-based admission rules. Unlike a well-known case that went all the way to the U.S. Supreme Court, the new suit was filed in state court, and bases its claims on the Texas Constitution and state statutes. Because the Supreme Court ruled in Fisher v. University of Texas that UT-Austin could retain its race-based admission system, it is unclear how the new case will fair.
In 2008, Abigail Fisher, a Caucasian woman from Sugarland, applied for admission to UT-Austin. She didn't qualify for automatic admission because she wasn't in the top 10 percent of her class. She competed with others in the the normal pool of in-state applicants and didn't get in. Fisher claimed that if the university had not used race as a factor in admissions, she would have been admitted.
The Supreme Court found that UT-Austin's practice of using race as one factor in admission decisions was narrowly tailored to promote diversity – and therefore acceptable under the U.S. Constitution.
A group that backed Fisher in her case, the non-profit Students for Fair Admissions, filed a new complaint in a Travis County court on behalf of a new set of plaintiffs. They are arguing that affirmative action, as used by UT-Austin, is invalid under the Texas constitution.
Lynne Rambo, a professor of law at Texas A&M University Law school, who is a specialist in equal protection, affirmative action and constitutional law, says the plaintiffs base their suit on three state provisions, including two found in the Texas Constitution.
"The main part of the Texas Constitution that they're relying on is the Equal Rights Amendment… that Texas adopted back in 1972, when [it] was being advanced by women [nationally.] That has been interpreted by the Texas Supreme Court to go beyond the Equal Protection Clause," Rambo says.
Cases based on Texas law could fail because the U.S. Constitution's Supremacy Clause places adherence to the U.S. Constitution over state law. But Rambo says the fact that the Texas Equal Rights Amendment grants more rights could help the plaintiffs' case.
"Classically, the states have been allowed to expand broader constitutional rights than the U.S. Constitution," she says. "In many states, there are broader Fourth Amendment protections. Texas, for example, has a broader Fifth Amendment self-incrimination privilege than the U.S. Constitution affords."
Students for Fair Admission was created by Edward Blum to seek plaintiffs to challenge university admissions policies at UT-Austin, Harvard, the University of North Carolina and the University of Wisconsin.
"He's a UT grad, and he apparently has a real dislike for the consideration of race in any number of areas," Rambo says. "He was behind Shelby County, for example, the case challenging Sections 4 and 5 of the Voting Rights Act."
Written by Shelly Brisbin.