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Affirmative action case develops

The Supreme Court has asked the University of Texas to provide a reaction to the new challenge to its race-based affirmative action policy on college admissions.  That request, noted yesterday on the Court’s docket for the case of Fisher v. University of Texas (docket 11-345), kept the case going even though university officials had simply avoided taking any action on it so far. (This blog posted this story when the case first reached the Court.)

Since the petition by rejected white applicant Abigail Noel Fisher was filed on September 15, numerous contacts with university officials and others close to the case seeking a reaction about their plans have met with cryptic responses.  For example, the university’s president, William Powers Jr., responding to one of those queries through an aide on Oct. 25, re-released an earlier statement saying that “the UT legal team is reviewing the petition for certiorari  and we will continue our very important defense of this case.”  The aide commented on his own: “We are unable to comment on this case or our legal strategy while the litigation is still pending.”

Another person close to the case, though, had said in response to a query that the university had waived its right to respond to the petition.  But the date for such a response — October 19 — came and went, and no waiver was ever noted on the Court’s docket.  Waivers are not uncommon, but simple refusals to react in any way are highly unusual, especially in a high-visibility case.    One reason for doing so may be to simply avoid taking a position, and, if a response is not then requested by the Court, leaving the case to be routinely denied review.   It is unclear whether that was the reason the University of Texas and its counsel did not react.

This blog’s earlier post discussed the Fisher petition in full.  The petition raised this question: “Whether this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2008), permits the University of Texas at Austin’s use of race in undergraduate admissions decisions.”

Under the Court’s request for a response, the university is to file on November 30, unless it asks for and obtains an extension of time to file.  If the university responds then or within a few weeks after that, it could be on a schedule — if granted review — for final decision during the current Court Term.

Since the petition was filed, it has already attracted six amici filings, including one from three of the eight current members of the U.S. Commission on Civil Rights.  Other such briefs come mainly from conservative legal and other advocacy organizations.   One brief is unusual in that it is co-signed by a Washington magazine and television journalist, Stuart Taylor, Jr., who is also a lawyer and who signed the brief as “counsel of record” for those amici.  At one time in his journalism career, Taylor covered the Supreme Court for The New York Times.  The other signer of that brief is UCLA law professor Richard Sander.   They argued that college “admissions preferences,” based on race or other factors, are actually harmful to the students who receive them, causing them to receive lower grades.



Recommended Citation: Lyle Denniston, Affirmative action case develops, SCOTUSblog (Nov. 1, 2011, 5:05 PM),