UT History Matters in Affirmative Action Case
This post originally appeared on The Root.
Your Take: A Texas school's racist past overshadows Fisher case, say Lani Guinier and Penda D. Hair.
By: Lani Guinier and Penda D. Hair
Within five weeks of the 1954 Supreme Court decision in Brown v. Board of Education outlawing segregation, the University of Texas named its newest dormitory in honor of Col. William Simkins, a law-school professor from 1899 to 1929. Prior to joining UT's faculty, Simkins organized a Ku Klux Klan chapter in Florida that murdered 25 former slaves in the years following emancipation. While at UT, Simkins delivered well-received annual lectures in which he bragged about exploits as "a criminal and a terrorist, a gun-toting, mask-wearing, night-riding Klansman.
This week the Supreme Court will hear Fisher v. University of Texas, a case challenging UT's affirmative action program. The Supreme Court has said: "Context matters when reviewing race-based governmental action under the Equal Protection Clause." When the court addresses affirmative action at a public Southern university for the first time, the context of its being in a Confederate state with a prominent history of state-sanctioned racial animus must be squarely confronted. Advancement Project's friend-of-the-court brief (pdf) details how the state's and the university's racist histories still pervade the Austin campus.
The university's action in naming a noted dormitory for an avowed criminal symbolized the culture of the university for the next 55 years. It took at least two decades after Brown before more than a very few black students even gained admission to UT.
Immediately after Brown, UT modified its open-admissions policy. Black students who met pre-1954 admission standards were required to take paper-and-pencil tests designed explicitly to keep them out. And those few who made it into UT were barred from all campus dorms (including Simkins Hall). They were also excluded from intercollegiate athletics and extracurricular activities, as well as from bathrooms, fraternities and sororities open only to whites.
On UT's campus, Simkins is not ancient history. UT reluctantly renamed Simkins Hall in 2010 only after protests by students and faculty. For most of the 20th century, a large brass bust of Simkins sat in the UT law library, awaiting students who engaged in a ritual of rubbing his head for good luck!
Even today, all UT students walk a campus dotted with monuments honoring segregationists and Confederate leaders, including Robert E. Lee Statue, Painter Hall (named after a UT president who defended segregation), Robert Lee Moore Hall (Moore was a math professor who refused to teach black students) and Texas Cowboys' Pavilion (where racially derogatory minstrel shows were held).
African-American and Latino students describe a campus where the ghosts of Simkins and his ilk lurk, maintaining an atmosphere of racial isolation and hostility. Racial controversies have been common, even today, in the 21st century. In March 2012 the student newspaper, the Daily Texan, published a cartoon mocking the killing of Trayvon Martin, an unarmed black Florida teenager.
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.