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Legal scholarship highlight: The trouble with Fisher

As anticipation builds for the Court’s latest brush with affirmative action, commentators, amici, and perhaps even the Justices have overlooked that Fisher v. University of Texas at Austin is a procedural shambles. There are serious questions whether Fisher is justiciable at all and, if it is, whether the Court should reach its merits. If some Justices sought to use Fisher to end affirmative action, they could not have picked a faultier vehicle for doing so.

Most of Fisher’s deficiencies stem from one surprising fact: all that’s at stake, aside from the future of affirmative action, is one hundred dollars. That is the sum of Abigail Fisher’s application fee (fifty dollars) and nonrefundable housing deposit (another fifty dollars), which are the only money damages she claims and the only forms of relief remaining in the case.

Her challenge started out more ambitiously, of course, seeking broad declaratory and injunctive relief against the university. But she made choices at the beginning of her lawsuit that reverberate today. Unlike Barbara Grutter and Jennifer Gratz, Fisher did not bring her suit as a class action on behalf of future applicants. Soon after filing it, she enrolled at Louisiana State University and professed no intent to reapply or transfer to the University of Texas at Austin (UT). Those circumstances led the Fifth Circuit to declare that Fisher lacked standing to seek forward-looking relief, leaving only the one hundred dollars.

In a forthcoming essay, I take that conclusion and run with it. The essay examines mootness, standing, sovereign immunity, and Title VI issues with respect to the one-hundred-dollar damages claim. It offers several bases for scuttling the case, on both jurisdictional and avoidance grounds.


With only one hundred dollars at stake, one wonders: can’t Texas just pay up and make this all go away? It is hard to see why not.

Texas has reasons to be hesitant, though. Mooting the case now requires forfeiting its hard-won Fifth Circuit precedent. Texas might also anticipate that a second, more foolproof challenge would commence immediately, so why not get this over with now? On the other hand, mooting Fisher would give the university several years to tweak its policies before the next case reaches the Court. By that time, too, the Court’s make-up could have shifted somewhat in Texas’s favor.

Of course, these considerations are themselves moot if Texas has already ponied up. Last month on this blog, UT law professor Sanford Levinson wrote that “it is reliably reported that the University has offered to refund the application fees the plaintiff might have paid four years ago.” Texas has not informed the Court of that offer, but if Professor Levinson is right, then Fisher is already moot.


Fisher faces several hurdles to establishing her standing to claim the one hundred dollars in fees as damages. To have Article III standing, a plaintiff must have suffered (1) a concrete, particularized “injury in fact” (2) that bears a causal connection to the alleged misconduct and (3) that a favorable court decision is likely to redress. Three arguments against Fisher’s standing are keyed to each of these prongs.

The arguments on the latter two are the simplest. To the extent that Fisher’s alleged injury is a monetary one (that is, the lost one hundred dollars), it bears no causal connection to the complained-of university conduct. UT’s consideration of race in admissions did not make Fisher any more likely to apply to UT and thus to pay the fees. If anything, the opposite is true.

To the extent that Fisher’s alleged injury is her rejection from UT, she has a redressability problem – a problem of her own making, in fact. Fisher’s complaint alleges that she was “deprived of the opportunity to attend the UT Austin, an injury that cannot be redressed by money damages.” Such an admission is understandable when one remembers that the early focus of the case was injunctive relief, but it is also the kind of unwise concession that dooms cases in the federal courts every day.

The argument on the injury prong is more intricate and turns on the interpretation of a minor affirmative-action decision, Texas v. Lesage (1999). Where prospective relief is concerned, the Court has made clear that being deprived of the opportunity to compete on an equal footing because of one’s race is a sufficient “injury in fact” for Article III standing. What counts as a sufficient injury in a purely retrospective case like Fisher is not so clear. Lesage is the culprit.

In Lesage, the Court wrote that, when forward-looking relief is not at issue, “there is no cognizable injury warranting relief under § 1983” if the government defendant can show that it would have made the same decision under race-neutral criteria. In other words, unless Fisher can show that UT would have admitted her but for her race, she has suffered no “cognizable injury.”

Lower courts have uniformly interpreted that reference to “cognizable injury” as an invocation of Article III standing requirements. If those courts are right that Lesage is about standing in discrimination cases, then the Supreme Court cannot decide Fisher. No court has yet answered the (counter)factual question whether Fisher would have been admitted but for UT’s consideration of race, and the Supreme Court is not the place to do it in the first instance.

There are good reasons to doubt that interpretation of Lesage, though, not least that Lesage didn’t once use the word “standing.” Still, even under the alternate interpretation of Lesage, Fisher is vulnerable because constitutional avoidance beckons. UT has consistently asserted that Fisher would have been rejected even under race-blind admissions criteria. If UT is right about that, there is no need for a constitutional ruling from the Court, as Lesage would render Fisher ineligible for the one-hundred-dollar refund regardless. The Court should simply remand for that factual determination without reaching the merits, consistent with longstanding customs of avoidance and restraint.

The Eleventh Amendment and Title VI

Fisher’s desired refund is also a nonstarter under an entirely different analysis. Sovereign immunity under the Eleventh Amendment generally bars suits against states, including state officers in their official capacities, for retrospective monetary relief. Retrospective monetary relief is all that’s at stake in Fisher, and the defendants are the state university and a host of its officials, all sued explicitly in their official capacities. The Eleventh Amendment implications are apparent. (Like mootness and standing, the Court speaks of Eleventh Amendment sovereign immunity in jurisdictional terms, implying that the Court is obligated to raise and answer the issue for itself before it can proceed to the merits.)

Sovereign immunity alone does not knock out the entire case, though. Fisher wisely included a claim under Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination in federally funded programs. Actions under Title VI are a categorical exception to the sovereign immunity bar. Title VI doctrine, however, presents some of its own challenges. To obtain money damages under Title VI, a plaintiff must prove that a recipient of federal funds intentionally violated the clear terms of Title VI. The Court’s precedents strongly imply that UT would not be liable for money damages under Title VI for attempting, in good faith, to use race in admissions in accordance with prevailing law.

This matters because, while Fisher alleges a violation of Title VI, she does not allege an intentional, knowing, or flagrant violation that would give rise to money damages. Combined with the sovereign immunity bar, Fisher’s failure to state a claim for money damages under Title VI is a fatal, if nonjurisdictional, flaw in her case. Suppose the Court uses Fisher to make a grand pronouncement of constitutional law in her favor. It will be embarrassing when, on remand, the district court reveals that most of the Court’s ruling was barred by sovereign immunity and that what remained must be dismissed for failure to state a claim. Texas has not made this argument (unless a bare citation to my essay counts), but the Court should consider it another opportunity to dispose of the case without wading into the white-hot merits.

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The essay goes on to explain why the most obvious routes to resuscitating the case – such as amending the complaint, or invoking the “capable of repetition, yet evading review” exception to mootness – lead to dead ends. Ultimately, the essay recommends that the Court dismiss Fisher as improvidently granted but acknowledges how improbable that is. It predicts instead that, however unnecessarily and unconvincingly, the Court will reach the merits. If it does, Fisher could provide the latest example of a giant constitutional issue leaving dubious procedural law in its wake. (The essay cites NFIB v. Sebelius and Knox v. SEIU as two examples from last Term.) Such are the scars inflicted by reaching for issues lurking behind thickets of jurisdictional and procedural thorns.

This post is derived from an Essay to be published in The Yale Law Journal Online. See Adam D. Chandler, How (Not) To Bring an Affirmative-Action Challenge, 122 Yale L.J. Online (forthcoming Sept. 2012), available here.

Recommended Citation: Adam Chandler, Legal scholarship highlight: The trouble with Fisher, SCOTUSblog (Sep. 6, 2012, 5:41 PM),