UT Bumbles Its Way Back to the Supreme Court On Admissions. Thanks A Lot.

Try this on for size. The University of Texas is back in the soup big-time over its admissions policies, for what will be its second tour before the U.S. Supreme Court. In putting itself there, UT has dragged every other public university and college in the nation back into the soup with it.

The legal issue, the question, the problem, the whole deal is whether the university can be trusted about its admissions policies. The one University of Texas regent who wants to know what’s going on with those policies has been forced to sue the chancellor of the university system in an effort to make him reveal what the problem is. But that’s not what I want you to ponder, yet.

The thing to marvel at is this: A majority of the board of regents of the University of Texas board of regents are really, really mad at regent Wallace Hall for trying to find out what’s going with their admissions system. They are supportive instead of the university system’s new chancellor, who is sitting on a trove of documents for them, refusing to let Hall see them.

The fact that UT has bumbled its way back into the spotlight on college admissions is far more than a problem for UT. People who still believe in programs to achieve diversity – like me, for instance – are worried that UT’s second appearance will hand the conservative wing of the court an opportunity it has been looking for to shoot down all forms of affirmative action in admissions programs. And from there it’s maybe not a far reach to killing affirmative action as a social value.

And, look, even if you are an affirmative action foe, you can’t be an admirer of the way UT got here. The duplicity alone is enough to make a reasonable person want to go to Austin and snatch those people bald.

In the recent round of stunning decisions from the Supreme Court, none was more unexpected than the court’s agreement to re-hear  Fisher v. University of Texas, a 2008 lawsuit brought by a white student claiming the university’s diversity-seeking admissions system had unfairly deprived her of admission.

The Fisher case was supposed to have been put to rest for the next 20 years by a 2013 5th U.S. Circuit Court of Appeals decision in favor of the university. Universities all over the country thought they could look forward to decades of peace on affirmative action, as long as they obeyed a set of rules for how to promote diversity.

But last Monday that peace blew up. Fisher had asked the high court to hear an appeal of the 5th Circuit ruling. The big surprise came after after a weeks-long weird process in which the Supreme Court kept relisting the Fisher case every week as something it might say something about soon … but for week after week it never did say anything. Court-watchers told me it was strange for a Supreme Court case to be relisted twice. Fisher was relisted six times before the court spoke up.

Nobody knew what that meant, because the Supreme Court doesn’t tell people what anything means. But everybody seemed to know it meant something, because it was weird.

The speculation was that something new had come into the picture, even though that’s not how appeals are supposed to work. Normally an appeal is based solely on what was in the original trial, not new evidence.

But the court did receive a blistering friend-of-the-court brief (see copy below) from the Cato Institute, a conservative think-tank, in support of Fisher’s request to be heard again. The Cato brief called the court’s attention to an investigation of admissions at UT that grew out of the Hall disclosures. Cato told SCOTUS the investigation proved that UT’s “claimed diversity rationale is a sham.”

That would be new evidence, maybe. But if it goes to the university’s core integrity – if the university has been lying to the courts about why it handles admissions the way it does – then maybe it’s not so new. Maybe it goes right to the heart of the existing case.

We have talked here often before about revelations brought forward by Hall showing that the former president of the university and some of the regents were handing out undergraduate admissions to sons and daughters of influential state legislators the way favors of love are distributed in a bawdy house. But does that kind of corruption go to the affirmative action question?

Nobody knows if the Cato amicus brief played any role at all in the high court’s eventual decision to rehear Fisher. But if it did, this would be why: When the Supreme Court ruled in 2013 to send Fisher back down to the 5th Circuit, the court said the lower court needed to take a tougher look at the university’s admissions policies. The Supreme Court told the lower court not to just take the university at its word but to examine the university’s admissions closely under a doctrine called “strict scrutiny.”

The 5th Circuit basically said yeah, yeah, OK, we strict scrutinied them, and we still trust them. So the 5th Circuit upheld the university. Fisher appealed back to the Supreme Court saying the 5th Circuit hadn’t really done the strict scrutiny strictly enough.

Then along comes the Wallace Hall evidence of an under-the-table secret admissions program the university forgot to tell the courts about. In fact, Hall’s investigation found evidence of lying, destruction of documents, coercion – enough story lines for an entire season of The Sopranos, all having to do with UT admissions.

We’ve told you here about the reaction of the university and the Legislature. They tried to bring criminal charges against Hall, impeach him and everything else you’d expect the Sopranos to do short of a long walk down a short pier. None of it worked. Every time there was a serious outside investigation of his charges, Hall was vindicated.

This saga, sadly, is still ongoing. Almost as if it had been a codicil in his employment contract, former Admiral William McRaven, the brand-new chancellor of the University of Texas system, went to work as soon as he showed up trying to shut down Hall’s access to a trove of information about the admissions scandal that still is being kept secret, even from the board of regents in spite of their fiduciary duty and obligation to oversee the university system.

Texas Attorney General Ken Paxton, who is my hero of the day today (relax, relax, I’ll change it up again tomorrow) ruled recently that Hall could sue McRaven to force him to produce the documents Hall was seeking. Paxton’s argument was that Hall, as a regent, had a clear duty on several levels to seek this important information and that the rest of the regents, if they knew their duty, would be joining him instead of getting McRaven’s back. Hall’s argument is that even the investigations that vindicated him were cover-ups at a certain level and that the board of regents still has no idea how deep-running or grave the scandal in admissions really is. 

From the very beginning, the University of Texas could have deflected most of the criticism and deflated most of this scandal had it opted for daylight. Instead, by fighting Hall every inch of the way like a bunch of guilty-as-hell dead-enders, the university and its regents have managed to send up so much smoke it’s probably visible by satellite.

We may never know if that smoke is what killed the pax Romana on affirmative action and got the Supreme Court back into it, but that’s exactly what everyone’s going to be speculating about. Plus this: At what point do the geniuses in Austin take a long look at their track record? At every key point along the way, Hall has won. UT has lost. Does that mean something?

At this very moment, when every eye in higher education is going to be turned toward Austin, there is the admiral in his chair trying to sit on top of something that must be very big and very bumpy. It just is not a pretty picture.

The Cato brief.

Cato Amicus Brief Fisher Cert by Schutze