(NOTE TO READERS: This post deals with a follow-up development in an affirmative action case from the Supreme Court’s last Term, not the new case scheduled for next Term that is the subject of the symposium currently being published on the blog.)
The Fifth Circuit Court, beginning a process of deciding how to react to the Supreme Court’s skeptical new view of the use of race in college admissions, on Thursday handed lawyers a list of questions to shape the next round in the case of Fisher v. University of Texas-Austin.
On June 24, by a vote of seven to one, the Supreme Court found that the Fifth Circuit Court had not applied a sufficiently demanding legal standard when it upheld the partial use of race in selecting entering classes at Texas’s flagship university. The Supreme Court, though, did not strike down that plan. In a briefing order Thursday, the Fifth Circuit set the stage for moving the case forward — either in that court or in a federal district court.
The seven questions that lawyers were told to answer, in a briefing cycle that runs from October 4 through November 8, run from whether the case remains a live controversy and thus can continue to whether the university can justify the plan that the Supreme Court did not overturn but put under a significant cloud of doubt. The questions also test whether the Circuit Court should go ahead, or send the case to a District Court for a new look.
While the Supreme Court had said in its June ruling that a university should be given some deference for its view that it needed to use race for academic reasons, the Circuit Court asked lawyers to address whether the university should be given any deference on its view that it had not gone far enough to achieve a “critical mass” of minority students in its undergraduate enrollment.
The Circuit Court also asked whether the university had achieved a “critical mass” of minority students — a question that goes to whether the time had come to put an end to the race-based element of admissions policy at the Austin institution because its aims had been achieved.
Another key question was whether the university, in fashioning the plan that is at issue, had failed to consider some non-race alternatives as a way of achieving racial diversity on its campus.
The university has argued that the case should be brought to an end now that the young woman who sued to challenge the program — Abigail Fisher of Sugar Land, Texas — has now graduated from another university. Ms Fisher’s lawyers have argued that she still has a valid claim of being denied admission because she is white.
The Circuit Court told the attorneys involved to say whether there are “remaining questions of standing” — that is, whether Ms. Fisher can satisfy the Constitution’s Article III requirement that the controversy remain a live one, with real issues still at stake.
In seeking advice on whether it should proceed or send the case to the district court where the case originated, the Circuit Court asked whether, if it does decide on such a remand, it should do so with instructions on how that judge was to proceed hereafter.
The new opening brief for Ms. Fisher is due on October 4. The university’s new brief is due on October 25, and Ms. Fisher’s reply is to be filed by November 8.
The Circuit Court indicated that it would at least keep the case before it until it holds oral argument on the new questions on November 13 in a federal courthouse in Austin.
[Disclosure: Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel on an amicus brief in support of the university during the Supreme Court proceedings in this case. However, the author of this post is not affiliated with the law firm.]