Man behind Fisher affirmative action case files new lawsuit against UT-Austin

One year after the U.S. Supreme Court ended his years-long legal fight against affirmative action at the University of Texas at Austin, the man who recruited Abigail Fisher to sue the university has found another way to take UT-Austin to court.

This time, former Houston businessman Edward Blum claims the university's use of affirmative action to give a boost to black and Hispanic applicants violates the Texas Constitution, not the U.S. Constitution. But his new case makes the same argument as his previous one: that the school’s admissions policies discriminate against white and Asian students.

A nonprofit group founded by Blum filed suit in Travis County court Tuesday. The group cites the Texas Equal Rights Amendment — which bans discrimination based on "sex, race, color, creed or national origin" — in arguing that UT-Austin shouldn't be allowed to give slight preference to minorities in admissions.

It’s Blum’s latest strike in a nearly decade-long war against affirmative action at UT-Austin. He first recruited Fisher, a white student from Sugar Land, after she was denied admission to UT-Austin in 2008. The case spent years in federal courts before the U.S. Supreme Court ruled against her in 4-3 verdict last year.

That ruling, Blum says, should have no bearing on how state courts analyze the Texas Constitution.

"We believe that most Texas judges and justices will agree with our interpretation of the Texas Constitution," he said in a news release.

UT-Austin officials, meanwhile, say they are still confident in their policies.

“UT-Austin uses race and ethnicity as one factor in our holistic admissions process,” said Provost Maurie McInnis. “The policy is narrowly tailored. It complies with state and federal law and the Texas and U.S. Constitutions and has been upheld by the U.S. Supreme Court.”

McInnis said Tuesday afternoon that UT-Austin hasn’t yet been served with papers in the case but will “respond through the formal legal channels” once it has received them.

The university has been using affirmative action in a limited way since a 2003 U.S. Supreme Court decision made it allowable in Texas. About three-fourths of its Texas students are admitted through an admissions policy known as the Top 10 Percent Rule, which grants automatic admission to students who graduate near the top of their high school's class. UT-Austin considers the race of its applicants as a minor factor when considering the rest of its applicants.

But Blum said that policy doesn’t pass legal scrutiny. UT-Austin uses racial preferences to help “underrepresented” black and Hispanic students. But the suit says that in 2016, only 38 percent of future freshmen admitted by UT-Austin were white and only one-third who were admitted automatically were white.

“UT Austin’s freshman class would be more than 50 percent non-White without the use of racial preference,” the suit says. “By any measure, that is enough diversity to ensure that underrepresented minority students do not feel isolated.”

The lawsuit is filed on behalf of Students for Fair Admissions, a nonprofit group founded by Blum. The suit claims that it has more than 20,000 members across the country. The group has filed multiple lawsuits in recent years related to affirmative action, including suits against Harvard University and the U.S. Department of Education.

The group’s website asks visitors a question: “Were You Denied Admission to College? It may be because you’re the wrong race.” It encourages students to submit their admissions stories, and says its mission “is to support and participate in litigation that will restore the original principles of our nation’s civil rights movement.”

That’s similar to the methods Blum used to bring the Fisher case against UT-Austin. At that time, he set up a site called UTnotfair.org and encouraged visitors to ““Help Make UT’s Admissions Policy Fair Again!”

According to the lawsuit filed Tuesday, Students for Fair Admissions includes multiple members who were denied by UT-Austin in 2017.  The suit says the applicants faced discriminatory policies that disadvantaged white and Asian students.

“That kind of discrimination has always been wrong — and it is wrong today,” said Cory Liu, volunteer executive director of the group, in a press release. “We’re all Americans. What matters is your character, your experiences and your accomplishment, not your race or ethnic heritage.”

Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.