An Update on the Fisher v. University of Texas Affirmative Action Case, and the Procedural Issue That Might, But That Need Not, Complicate Things

Verdict
October 28, 2011
Vikram David Amar

Last month, I wrote a column for this site analyzing an important affirmative action case, Fisher v. University of Texas. The plaintiffs in that case—unsuccessful undergraduate applicants to the University of Texas who challenge the constitutionality of UT’s race-based affirmative action admissions program—are currently seeking review in the U.S. Supreme Court. (Interested readers should consult my prior column for detailed background on the substantive issues raised by the lawsuit.)
Since that time, some analysts (including Adam Chandler, who wrote a thought-provoking blog post on the case) have suggested that the Supreme Court should not—indeed, perhaps cannot—grant review on the affirmative action issues in the case because of a procedural wrinkle. In the space below, I explain and examine that wrinkle.

Full Story: http://verdict.justia.com/2011/10/28/an-update-on-the-fisher-v-university-of-texas-affirmative-action-case

ERBE: Supreme Court to take up affirmative action

The Times Herald
Posted: 10/23/11 05:33 pm
Scripps Howard News Service

Is affirmative action passe, or is it a vibrant doctrine that is still sorely needed to diversify the nation’s public colleges and universities? That is a question the Supreme Court is likely to take up and answer later in the current term.
At issue is whether public colleges and universities can take into account a student’s race when deciding whether to grant that student admission. A white woman named Abigail Fisher claims she was denied admission to the University of Texas due to her race. According to The New York Times, “She sued in Federal District Court in Austin, causing Judge Sam Sparks to spend time trying to make sense of a 2003 Supreme Court decision allowing racial preferences in higher education.

Full Story: http://timesherald.com/article/20111023/NEWS/111029868/-1/news

Black Organization Joins Supreme Court Brief in Fisher v. University of Texas

The National Center for Public Policy Research
Press Release
For Release: October 20, 2011 Contact: David Almasi at (202) 543-4110 x11 or (703) 568-4727 or project21@nationalcenter.org

Black Organization Joins Supreme Court Brief in Fisher v. University of TexasGroup Joins Pacific Legal Foundation, American Civil Rights Foundation, National Association of Scholars and Center for Equal Opportunity in Seeking Clarity on Race-Based School Admissions Standards

Washington, D.C. - The black leadership network Project 21 has joined a brief to the U.S. Supreme Court in support of a case asking the Court to revisit race-based admissions standards at colleges and universities.
"What's to be decided in this latest challenge to race-based preferences is something very fundamental -- should an applicant to a college or university be rewarded or penalized simply because of the color of their skin," said Project 21 spokesman Joe R. Hicks, a former executive director of the Greater Los Angeles chapter of the Southern Christian Leadership Conference and the Los Angeles City Human Relations Commission. "The U.S. Supreme Court skirted this essential issue in 2003 when it faced the issue of racial preferences in Grutter v. Bollinger and Gratz v. Bollinger. Now, in Fisher v. University of Texas, while not frontally challenging the Court's 2003 ruling, what's being asked is that race neutral standards be applied before any pandering to 'diversity' occurs. What's factually clear is that had Abigail Fisher been black or Hispanic she would have been eagerly accepted to the University of Texas. Instead, she was rejected. No matter how you parse it, this amounts to discrimination."
Project 21 joined an amicus curiae ("friend of the court") submitted to the U.S. Supreme Court in the case of Abigail Noel Fisher v. University of Texas at Austin. The brief was written by the Pacific Legal Foundation and, in addition to Project 21, has been joined by the Center for Equal Opportunity, American Civil Rights Foundation and National Association of Scholars.
In the case of Fisher v. Texas, plaintiff Abigail Fisher, who is white, claims that racial preferences in the University of Texas at Austin enrollment process in 2008 caused her to be rejected in favor of lesser-qualified candidates who are racial minorities. Her appeal to the U.S. Supreme Court seeks to determine if UT's race-based admissions policy presents a "compelling, otherwise unsatisfied, government interest and narrow tailoring to advance their interest" as it pertains to the equal protection guarantee of the 14th Amendment to the U.S. Constitution.
Race-based admissions were outlawed in Texas in 1996 by the 5th Circuit Court of Appeals Hopwood decision. Afterward, in 1997, Texas legislators passed legislation signed by then-Governor George W. Bush that granted automatic public college and university admission to high school students in the top ten percent of their graduating classes. This law is credited with increasing black and Hispanic enrollment above pre-Hopwood levels. On June 23, 2003, however, the day the U.S. Supreme Court cited a "compelling state interest" for certain classroom diversity standards in its ruling in Grutter v. Bollinger, UT officials announced they would re-introduce racial considerations into the application process.
"Color-coded admission standards are unnecessary, and they have no role in the 21st century. Such race-based standards send the wrong message to our youth - that a person's skin color matters more than one's character and merit," said Project 21 Fellow Deneen Borelli. "Proposing special treatment to one group while denying another group access based on race is discriminatory against all parties and may lead to race-based animosity." The brief Project 21 joins states that the lower court decisions in this case conflict with previous U.S. Supreme Court interpretations because they interpret public universities as always having a compelling interest to promote "racial diversity" and are not required to give "serious, good faith consideration to less restrictive race-neutral policies."
"Review is crucial," the brief argues, "to restore meaningful limits on government's authority to discriminate based on race."
In explaining the perversion of the Court's Grutter ruling, the brief notes:
Instead of viewing Grutter as a warning to exhaust race-neutral alternatives before adopting a race-conscious admissions plan, the University of Texas viewed Grutter as a blueprint for creating race-conscious measures as a first option... The Fisher panel abandoned narrow tailoring when it ignored the need for the University to seek out race-neutral alternatives before resorting to a race-conscious admissions policy. This Court should grant review to clarify that Grutter does not sanction this race-first attitude in university admissions.
The brief points out how Proposition 209, a ballot initiative passed by California voters in 1997, which outlawed public university admissions preferences, forced schools at the elementary and high school level to offer more preparation for minority students that is credited with increasing minority university enrollment to pre-1997 levels. This non-discriminatory approach is similar to the Texas top-percent law abandoned by UT in 2003. "There is no harm in seeking diversity across our institutions of higher learning. The danger, however, is when diversity is sought and defined in terms of race only," said Project 21 spokeswoman Lisa Fritsch, who lives in Austin. "What can one person offer in terms of humanity and diversity that is race-specific? What can one race provide in terms of uniqueness that another cannot? Individual persons should be judged based on their unique set of accomplishments and achievements according to the standards set by the university irrespective of race. Otherwise, it isn't true diversity that is gained, but instead looming suspicion and an interior statement that a true academic and mental equality cannot exist between human beings. The compelling interest is to make sure we are not a society that continually says minority students are unable to meet required academic criteria and expectations that other students are deemed able and held accountable." Project 21, a leading voice of black conservatives since 1992, is sponsored by the National Center for Public Policy Research (http://www.nationalcenter.org).
-30-

http://www.nationalcenter.org/P21PR-Fisher_102011.html

College Diversity Nears Its Last Stand

The New York Times
Sunday Review
By ADAM LIPTAK
Published: October 15, 2011

Adam Liptak is the Supreme Court correspondent for The New York Times.
Washington
ABIGAIL FISHER, a white student, says she was denied admission to the University of Texas because of her race. She sued in Federal District Court in Austin, causing Judge Sam Sparks to spend time trying to make sense of a 2003 Supreme Court decision allowing racial preferences in higher education. “I’ve read it till I’m blue in the face,” Judge Sparks said in an early hearing in Ms. Fisher’s lawsuit. But the meaning of the central concept in the decision — “this esoteric critical mass of diversity of students,” he called it — kept eluding him.

Full Story: http://www.nytimes.com/2011/10/16/sunday-review/college-diversity-nears-its-last-stand.html?_r=1

Affirmative action opponents petition Supreme Court to review UT case

American Independent
09.20.11 5:32 pm

The University of Texas is once again embroiled in a possible Supreme Court case involving affirmative action in their admissions process. As the Austin American-Statesman reported, lawyers have filed a petition on behalf of a student who’d applied to the school, asking for the Supreme Court to review the UT’s consideration of race in undergraduate admission decisions.
“If any state action should respect racial equality, it is university admission. Selecting those who will benefit from the limited places available at state universities has enormous consequences for their futures and the perceived fairness of governmental action,” lawyers argue in the petition to the Supreme Court.

Full Story: http://www.americanindependent.com/194958/supreme-court-petitioned-to-review-ut-affirmative-action-case

Race-based affirmative action in peril

US NEWS

Published: Aug. 7, 2011 at 3:30 AM
By MICHAEL KIRKLAND



WASHINGTON, Aug. 7 (UPI) -- Two cases are pushing affirmative action toward the U.S. Supreme Court again where simple arithmetic suggests it might snap like a board under too much pressure.

The high court ruled on race-based affirmative action in two landmark cases in 2003. Then, like now, the court was divided into a conservative bloc and a liberal bloc, with two members, Justices Sandra Day O'Connor and Anthony Kennedy often forming the swing votes



Read more: http://www.upi.com/Top_News/US/2011/08/07/Under-the-US-Supreme-Court-Race-based-affirmative-action-in-peril/UPI-25071312702200/#ixzz1UiTpLXID

5TH CIRCUIT DECLINES EN BANC REVIEW OF FISHER V. UNIVERSITY OF TEXAS

OFCCP Blog Spot
by Art Gutman Ph.D., Professor, Florida Institute of Technology
Tuesday, July 12, 2011

On August 17, 2009, Judge Sam Sparks of the US District Court for the Western District of Texas granted summary judgment to the University of Texas (UT) at Austin in a lawsuit by two white applicants claiming, via the 14th Amendment, that they were unfairly denied admission on the basis of race [556 F. Supp. 2d 603]. Citing the Supreme Court’s rulings in Grutter v. Bollinger (2003) and Parents v. Seattle School District (2007), Judge Sparks ruled that UT had a compelling government interest in achieving diversity in their undergraduate programs, UT exhausted race-neutral methods in failed attempts to achieve diversity, and therefore, UT’s race-conscious plan was narrowly tailored toward the goal of achieving diversity.

Full Story:
http://ofccp.blogspot.com/2011/07/5th-circuit-declines-en-banc-review-of.html

Appeals court declines to rehear Texas affirmative action case

Thompson Reuters News & Insight
6/20/2011

NEW YORK, June 20 (Reuters) - A federal appeals court has refused to rehear a case challenging the University of Texas' affirmative action admissions policy. The denial sets the stage for a fight in the U.S. Supreme Court.
The U.S. Court of Appeals for the Fifth Circuit on Friday rejected a motion asking the court to reconsider its decision in January upholding the school's policy that considers race in determining admissions.
The 9-7 en banc ruling means that the next step for plaintiffs will likely be an appeal to the U.S. Supreme Court. Chances the high court will hear the case are good, between 30 percent to 50 percent, said Ilya Somin, a professor at George Mason University School of Law who has blogged about the case on the legal weblog, Volokh Conspiracy.

Full Story: http://newsandinsight.thomsonreuters.com/Legal/News/2011/06_-_June/Appeals_court_declines_to_rehear_Texas_affirmative_action_case/

Affirmative Action Is About Helping All of Us

The Chronicle of Higher Education
William Brown for The Chronicle
By Elizabeth Anderson

It's no secret that race-based affirmative action in higher education faces a crisis of legitimacy. It has been banned in California, Florida, Michigan, Washington, Arizona, and Nebraska. Even as the U.S. Supreme Court upheld the constitutionality of affirmative action in 2003 in Grutter v. Bollinger, the justices expressed an expectation that the policy would soon no longer be needed, practically inviting relitigation. Although the U.S. Court of Appeals for the Fifth Circuit recently upheld affirmative action at the University of Texas—in Abigail Fisher v. State of Texas—the forthcoming appeal may give the conservative Roberts court an opportunity to end it once and for all. One might expect colleges to rise to the challenge of forcefully articulating a clear case for their policies. Instead we find the same tired arguments on the left, and critiques of affirmative action on the right that reflect ignorance of the realities of race in America.
We need new arguments for affirmative action. We can find them by resurrecting the ideal of integration from the grave of the civil-rights movement.

Full Story: (Subscription Required) http://chronicle.com/article/Affirmative-Action-Is-About/127632/

No Time for Complacency on Racial Diversity

The Chronicle of Higher Education
February 13, 2011
By Arthur L. Coleman and Scott R. Palmer

Last month a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled that a University of Texas policy that included consideration of race as part of an overall assessment of applicants was lawful. Applying the U.S. Supreme Court's 2003 decision in Grutter v. Bollinger, which upheld the University of Michigan law school's race-conscious admissions policy, the appeals court found that the challenged policy "used a holistic, multifactor approach, in which race [was] but one of many considerations," and was aligned with Grutter.
The central issue in the case, however, had less to do with the policy's adherence to a Michigan-like model and more to do with whether Texas needed a race-conscious admissions policy in the first place.

Full Story: http://chronicle.com/article/No-Time-for-Complacency-on/126328/?sid=at&utm_source=at&utm_medium=en

One Nation, Indivisible

The New York Times
Editorial
Published: January 26, 2011

Fifteen years ago, the United States Court of Appeals for the Fifth Circuit flouted Supreme Court law when it struck down affirmative action at the University of Texas Law School. Last week, in an act of redemption, the appellate court upheld an admissions plan for undergraduates at the University of Texas at Austin that takes race into account to encourage diversity. The plan was adopted after the Supreme Court again approved affirmative action in higher education in 2003.

Full Story: http://www.nytimes.com/2011/01/27/opinion/27thu3.html?_r=1

Appeals court hears arguments on UT’s use of race in admissions

statesman.com
By Ralph K.M. Haurwitz Tuesday, August 3, 2010, 11:46 AM

NEW ORLEANS — Three federal appeals court judges gave no clear signal today of how they might rule in a case challenging the University of Texas’ consideration of race and ethnicity in undergraduate admissions.
The judges, with the 5th U.S. Circuit Court of Appeals, heard oral arguments in New Orleans by lawyers defending UT’s practice and a lawyer contesting it on behalf of two white students who were denied admission.
The three-judge panel is not expected to rule for several months. UT’s policy was upheld last year at the trial court level by Judge Sam Sparks of Austin.
“I thought the court was very well-informed on the case,” said UT President William Powers Jr., who attended the proceeding. “We stand by our case. We’ve got a good program.”

Full Story: http://www.statesman.com/blogs/content/shared-gen/blogs/austin/highereducation/entries/2010/08/03/appeals_court_hears_arguments.html

Next Week's Court Hearing on Affirmative Action

The Chronicle of Higher Education
July 28, 2010, 01:12 PM ET
By Richard Kahlenberg

(Kahlenberg continues his campaign against affirmative action...)

Next Tuesday, August 3rd, when many folks in higher education may still be winding up vacations, the U.S. Court of Appeals for the Fifth Circuit will hear oral arguments in the most important affirmative action case since the 2003 Supreme Court decision supporting the policy at the University of Michigan Law School in Grutter v. Bollinger.The challenge to the use of race in admissions at the University of Texas at Austin sharpens the focus on a question left hanging in Grutter: how vigorously do universities need to pursue race-neutral alternatives to affirmative action before resorting to racial preferences in admissions? As an excellent article by Morgan Smith in the Texas Tribune last week notes, the fact that UT Austin was banned from using race by an earlier Fifth Circuit decision in Hopwood v. Texas (1996) provides a unique set of circumstances to test whether race-neutral alternatives are able to produce a “critical mass” of under-represented minority students.

Full Story: http://chronicle.com/blogPost/Next-Weeks-Court-Hearing-on/25848/#lastComment

Feds slam Texas factory over discrimination claims

CNN.com

By the CNN Wire Staff

April 14, 2010 5:47 p.m. EDT

Dallas, Texas (CNN) -- African-American workers at a Texas pipe factory endured a string of racial slurs and harassment and were targeted by their managers when they complained, federal investigators have determined.
Black employees at the Turner Industries plant in Paris, Texas, regularly "were subjected to unwelcome racial slurs, comments and intimidation, racial graffiti, nooses in the workplace and other symbols of discrimination," the Equal Employment Opportunity Commission reported.
Black workers also were denied promotions and disciplined more harshly than whites, the agency concluded in a three-page letter in late March. Managers at the plant not only were aware of a "hostile environment," they also targeted workers who complained and disciplined white employees who opposed the harassment, the EEOC found.

Full Story: http://www.cnn.com/2010/US/04/14/texas.discrimination/index.html

U.S. sides with UT in defending race-conscious admissions

statesman.com
By Ralph K.M. Haurwitz
AMERICAN-STATESMAN STAFF
Published: 10:28 p.m. Wednesday, March 31, 2010

The Obama administration has sided with the University of Texas in a challenge to the school's consideration of race and ethnicity in admissions.
UT uses race "in an extremely limited way" that complies with a 2003 U.S. Supreme Court decision, in a case called Grutter v. Bollinger, that upheld the affirmative action policy used by the University of Michigan Law School, the federal government wrote in a friend-of-the-court brief filed last month with the U.S. 5th Circuit Court of Appeals, where the UT case is pending.
"The university's effort to promote diversity is a paramount government objective," the government said. "In view of the importance of diversity in educational institutions, the United States, through the Departments of Education and Justice, supports the efforts of school systems and post-secondary educational institutions that wish to develop admissions policies that endeavor to achieve the educational benefits of diversity in accordance with Grutter."
The support is welcomed but not surprising, said Patti Ohlendorf , UT's vice president for legal affairs. "We expected that the federal government would agree regarding the importance of diversity in higher education," she said.

Full Story: http://www.statesman.com/news/local/u-s-sides-with-ut-in-defending-race-497690.html

See the amicus curiae brief filed by the American Council on Education: http://www.acenet.edu/AM/Template.cfm?Section=News_Room&CONTENTID=35880&TEMPLATE=/CM/ContentDisplay.cfm

See the amicus brief filed by the Department of Justice in Inside Higher Ed article: "Strong Backing for Affirmative Action." http://www.insidehighered.com/news/2010/04/01/affirm

Court Win for Affirmative Action

Inside Higher Ed
August 18, 2009

A federal judge on Monday rejected one of the first legal attempts to roll back the 2003 ruling by the U.S. Supreme Court upholding the consideration of race and ethnicity, in some circumstances, in admissions decisions by public colleges and universities.
The decision by Judge Sam Sparks strongly upheld the admissions policies at the University of Texas at Austin as consistent with the Supreme Court ruling -- and rejected the argument that Texas had failed to meet the tests set out by the Supreme Court. In so doing, Judge Sparks shut down (for now) one strategy of those who oppose affirmative action -- namely trying to say that colleges' policies go beyond what the Supreme Court permitted. But the legal group that brought the case vowed Monday night to appeal to the U.S. Court of Appeals for the Fifth Circuit and, if necessary, to the Supreme Court.
The arguments in the suit against Texas generally attempted to use the Grutter v. Bolllinger decision, which upheld the use of race at the University of Michigan law school, to limit affirmative action. The Texas lawsuit, filed on behalf of a white high school senior who was rejected by UT Austin, noted that Grutter was premised on a link between diversity goals and educational goals, and that the decision did not envision the consideration of race as open-ended. The suit argued that because Texas didn't define a specific percentage goal and continued to use affirmative action after having success at attracting many minority students, the university was going too far.
But Judge Sparks disagreed. "The court finds both the plaintiffs' arguments unpersuasive and finds UT has a compelling interest in student body diversity as articulated in Grutter. First and foremost, nothing in Grutter suggests a university must establish a specific percentage, or range of percentages, the achievement of which would satisfy critical mass," Sparks wrote. He goes on to say that if UT did establish a specific percentage, it might be creating a quota of the sort barred by Grutter.

Full Story: http://www.insidehighered.com/news/2009/08/18/texas

NAACP Legal Defense Fund Applauds Decision Upholding University of Texas Admissions Plan

NAACP Legal Defense Fund
August 17, 2009
News Release (Email)

(New York, NY)- Today, a federal district court upheld the University of Texas at Austin's (UT) consideration of race in student admissions. Fisher v. Texas is the first federal court challenge to the use of race in university admissions since the 2003 Grutter v. Bollinger decision, where the United States Supreme Court declared that universities can take account of race in pursuing the compelling interest in a diverse student population. LDF and Fulbright & Jaworski, LLC filed a friend-of-the-court brief in support of UT's admissions plan, on behalf of UT's Black Student Alliance and several African-American students who are enrolled or who would like to enroll at UT in the future. The court concluded that, consistent with Grutter,UT's plan seeks to "'break down racial stereotypes,' enable students to better understand persons of different races, better prepare students to function in a multi-cultural workforce, cultivate the next set of national leaders, and prevent minority students from serving as 'spokespersons' for their race." The court rejected plaintiffs' claims that Texas's law guaranteeing admission to the top ten percent of high school graduates generated a sufficiently diverse student body at UT.

"LDF has fought tirelessly to ensure the pathways to success and leadership are open and accessible to all students. Today's decision will allow the University of Texas at Austin to continue its essential and well-documented efforts to provide a truly diverse educational environment for its students." said John Payton, LDF President and Director-Counsel. LDF's brief detailed the need for greater African-American enrollment to achieve the educational benefits of diversity. It also addressed the severe racial isolation experienced by African-American students at UT. As the court recognized, in 2002, 90% of UT classes with between five and 24 students had only one or no African-American students. Today's decision in Fisher v. Texas, issued by Judge Sam Sparks of the United States District Court for the Western District of Texas, can be located online at www.naacpldf.org.

ABOUT LDF
The NAACP Legal Defense and Educational Fund (LDF) is America's legal counsel on issues of race. Through advocacy and litigation, LDF focuses on issues of education, voter protection, economic justice and criminal justice. We encourage students to embark on careers in the public interest through scholarships and internship programs. LDF pursues racial justice to move our nation toward a society that fulfills the promise of equality for all.