UT History Matters in Affirmative Action Case

Your Take: A Texas school's racist past overshadows Fisher case, say Lani Guinier and Penda D. Hair.

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Today there are parts of the campus, including the West Mall, where black students, speaking to the university’s Task Force on Racial Respect and Fairness, have reported feeling that they are “not welcome” and “should keep out.” A Latina in her junior year reported in 2012: “It’s hard for me to speak up in class when it’s almost all white students around me.” A black student noted: “I have been the only black in a class of 100 … I’ve been overlooked during office hours … and I’ve been called ‘the n-word’ while walking on … [campus].” At UT, the past is still very much present.

To help overcome the ongoing impact of its racist history, UT adopted a very modest form of holistic review designed to admit a student body that better serves Texas in the 21st century. Three-quarters of the students who benefit from holistic review are neither black nor Latino.

The Supreme Court will consider the constitutionality of UT’s voluntary efforts to diversify a school where blacks and Latinos are still grossly underrepresented and many classes have only one or zero students of color every semester. This case is different from one arising in Michigan or California. Each state and region is defined by its singular history. The history of Texas makes its modest efforts to affirmatively welcome black and brown students different. At UT, William Faulkner’s observation rings true: “The past is never dead. It’s not even past.”

Lani Guinier is the Bennett Boskey Professor of Law at Harvard Law School; Penda D. Hair is co-director of the Advancement Project, a next-generation civil rights organization focused on issues of democracy and race.

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