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Once more, testing college affirmative action

Raising new doubts about state universities and colleges’ use of race in choosing their entering classes, the Supreme Court on Monday assigned itself once more the task of judging the constitutionality of the admissions plan at Texas’s flagship university.  The grant of review of Fisher v. University of Texas at Austin — the Court’s second look at that case — signaled uncertainty and maybe discontent with the way a federal appeals court had carried out a new review of that plan.

At this point, the Fisher case does not appear to pose a direct threat to the Court’s most recent ruling allowing some use of race in higher education admissions — the 2003 decision in Grutter v. Bollinger.  But that precedent may be at least reinterpreted, and possibly narrowed.

That was one of five cases in which the Justices granted review on Monday.  The Court may grant additional cases when it issues the final orders of the current Term, at 9:30 a.m. Tuesday.

The new review of the University of Texas case, like the Court’s prior ruling on it two years ago, will be made by an eight-member Court.  Justice Elena Kagan is again not taking part, probably because she was serving in the Obama administration when it was involved in the Texas case earlier.

After the Court, in its seven-to-one ruling in 2013, told the U.S. Court of Appeals for the Fifth Circuit to apply a more demanding analysis to the Texas plan, the Fifth Circuit once again upheld it, rejecting the challenge by Abigail Fisher, the white woman from Sugar Land, Texas, who has claimed that the university denied her application for admission five years ago because of her race.

Fisher’s lawyers filed a new appeal, arguing that the Fifth Circuit did not carry out the Court’s orders, and that it actually introduced a new level of race bias into the admissions process by accepting the view that students who graduated from racially segregated high schools in Texas lack sufficient educational qualifications to contribute to racial diversity at the university.

Fisher’s petition put its primary focus on the claim that the Fifth Circuit once again deferred to university officials’ argument that they needed to use race as one factor in making admissions decisions, when the Supreme Court had ordered the appeals court to independently judge the need for any use of race.

The university actually uses two plans in choosing its incoming class.  First, it assures automatic admission to any student who graduated in the top ten percent scholastically of the graduating class at a Texas high school.  That mode has controlled about eighty percent of first-year admissions.  Second, to fill the remaining seats, the university judges a wide array of applicants’ qualifications, and at that point does take race into account as one factor among them.

The new appeal argued that the Fifth Circuit, in concluding that the university did need to go to the second formula, based that view upon its discriminatory perception of the educational promise of students admitted under the so-called Top Ten Percent Plan.   That, the petition contended, “is the very ill that the Equal Protection Clause [of the Fourteenth Amendment] seeks to banish.”

While the new petition does not explicitly ask the Court to overrule the Grutter precedent, it suggested that, if the Texas plan is found to satisfy the Grutter decision, then that precedent should be reexamined and overruled.   The customary rule of respecting prior precedent, Fisher’s lawyers argued, has less force when an issue of race is involved.

The Court will hold oral argument in the case, perhaps next December, and will decide it later in the new Term.

The Court also added four other cases, raising these issues, to its docket for next Term:

** Whether Tennessee, the city of Memphis, and the city’s water utility company have violated Mississippi’s sovereignty by pumping billions of gallons of water from an underground source that Mississippi claims is entirely within its borders.  That issue arises in a case that the Justices allowed to be filed directly in the Supreme Court rather than first in a lower court; the case is Mississippi v. Tennessee, 143 Original.   The U.S. Solicitor General, asked by the Court for his views, suggested that the Court turn the case aside to await further developments.

** Whether federal law bars state governments from collecting data from those who pay health-insurance claims, in self-insured public and private plans.  The issue is whether the federal Employee Retirement Income Security Act’s annual reporting requirements displace state data-collecting systems.  The case is Gobeille v. Liberty Mutual Insurance Co.   The Solicitor General also was asked for a reaction to this case, and urged that it too be denied.

** Whether federal prosecutors waited too long to pursue a claim of gaining illegal access to a computer and failed to provide sufficient evidence of that crime, in a case involving a Texas businessman who allegedly tapped into the computer of a rival company.  The case is Musacchio v. United States.

** Whether the conviction of a crime of arson under state law is an “aggravated felony” that can lead to deportation of a lawful permanent resident in the United States.  The case is Torres v. Lynch.

The Court denied review on Monday of a number of significant new cases, including a major software patenting dispute between giants in that industry.   The issue in the case of Google Inc. v. Oracle America Inc. is whether, if a source code for a computer platform is an original creation, copyright protection also extends beyond that code to an arrangement for implementing it to enable an “app” to work.   Oracle has claimed that Google infringed on software application inventions that Oracle now owns, after they were originally developed by Sun Microsystems before Oracle acquired that company in 2010. (Justice Alito did not take part in the Court’s decision to deny. He did not provide a reason, but it was likely because he owns stock in one of the companies.)

The Court also refused to grant cases testing the potential assessment of billions of dollars of federal penalties for two oil companies for their role in the largest oil spill in U.S. history, in the Gulf of Mexico in 2010 (Anadarko Petroleum v. United States and BP Exploration and Production v. United States); testing the scope of the protection that members of Congress get from criminal prosecution under the Constitution’s Speech or Debate Clause (Renzi v. United States, and a companion case, Sandlin v. United States); and a test of whether federal law barring discrimination against the disabled requires local governments to provide on-street auto parking for the disabled (City of Lomita v. Fortyune).








Recommended Citation: Lyle Denniston, Once more, testing college affirmative action, SCOTUSblog (Jun. 29, 2015, 12:40 PM),