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Argument preview: What’s at issue in the Fisher case this time?

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Abigail Fisher’s attorney provided this image, a still from a video that her legal team produced.


Seven years after Abigail Noel Fisher of Sugarland, Texas, was denied admission to the state university in Austin, her lawyers are still trying to gain at least a modest victory — in money, worth about $100 — and the university’s attorneys are still trying to get the case thrown out of court as lacking in any real-world meaning.

That’s what the case of Fisher v. University of Texas looks like on first glance, and, in truth, it may turn out to be no more than that.  But the stakes might turn out to be huge: it could be that the result would go so far as to make it unconstitutional for public universities and colleges to take race into account in any way in choosing their entering classes.  And, even if it falls short of that, it could at least bar those institutions from considering minority students’  educational talents — or lack of them — as an admissions factor.

On Wednesday, December 9, in the only case on the Court’s calendar that day, the Justices will hear this dispute for the second time in the past two years.  The core issue is still the same: did the university use race in an unconstitutional way in picking the freshman class in 2008, and in keeping Fisher out of that class?

Fisher still believes that she was excluded solely because she is white, based on what she views as a flawed, race-based admissions policy.  The university still insists that her scores were not high enough, and she was not eligible for an automatic place in the class, so there was no way she could have been admitted, whatever her race.

Strangely, the Court has not tried to sort out who is right in those conflicting perceptions, instead proceeding to look at the Texas admissions policy itself as if neither of those views mattered.  That way, it has avoided an Article III question that has hung over the case for all of its five years: is this a real, live constitutional controversy?  The Court has simply assumed that it is, without saying so.

The reality is that the majority of the current Justices seems to hold a deep-seated skepticism about race as an influence — benign or not — on public policy making, so any time the Court takes up a question related to “affirmative action,” the outcome has the potential to become consequential.

Fisher has not been asking the Court to overrule its major precedents in favor of some use of race in college admissions, but she has argued that the racial diversity rationale for such programs may have to be reconsidered if the University of Texas program is valid under those precedents.

The U.S. Court of Appeals for the Fifth Circuit has twice upheld the Texas policy — once before the Supreme Court examined it in 2013, and once on the orders the Court gave it in that decision.  Each time, the Fifth Circuit ruled that the program makes only limited use of race, and serves the university’s interest in a racially and culturally diverse student body in a way that obeys Supreme Court mandates.

In this second time around, Fisher has put forward both a quite modest claim, and a more ambitious — even momentous — claim.

The simpler challenge is that the Fifth Circuit disobeyed the Supreme Court’s 2013 order to reconsider the Texas policy using a rigorous “strict scrutiny” approach.  The majority in the two-to-one ruling, the new petition argued, gave the university a pass, allowing it to control the defense of the admissions program on the university’s terms, without the majority boring deeply into the actual use of race.

The fact that the Court has granted review again, with no change in the policy since its last review, hints at the possibility that the Court might be content to clarify further the guidance it gave last time, and let the Fifth Circuit have another go at it.

The prospect that a new decision may not be a sweeping one is strengthened by the fact that Justice Elena Kagan is not taking part, which means that it may be more difficult to get a majority among the eight who are participating for a broad ruling, and so the Court might settle for less to avoid a four-to-four split.  An even split would uphold the Fifth Circuit’s decision, without any opinion from the Justices, leaving the ultimate validity of the Texas program intact but still in some doubt.

Although the Court ruled in 2013 by a seven-to-one vote, the decision did not have the breadth of some prior rulings on “affirmative action.”  The decision did make it somewhat harder for universities to justify the use of race, but it did not take race completely out of the admissions equation, suggesting that there had been a search for a more widely acceptable middle ground.  (Kagan is out of the case this time, as she was in 2013, because she had some role in the government’s part in the case in lower courts when she was U.S. Solicitor General).

But Fisher is aiming for much more than a narrow ruling.  Her broader claim is that the Fifth Circuit engaged in unconstitutional racial stereotyping, by treating black students who were eligible for automatic admission as if those students — as a group — were not well prepared to succeed at the university and to contribute positively to the goal of diversity.

To better understand that argument, one has to focus on two admissions policies: the one the university in Austin had before 2004, and the new one it adopted that year — the one that Fisher is challenging.

Before 2003, the state’s flagship university sought racial diversity on the campus through what was called the “Top Ten Percent Law.”  Any student who finished in the top ten percent of a graduating class in a Texas high school was eligible for automatic entry into the Austin institution as a freshman. That was the state legislature’s attempt to reach a diversity goal by a strictly race-neutral formula, after an earlier policy had been struck down by a federal appeals court in 1996.

But after the Supreme Court in 2003 issued a major ruling reaffirming the partial use of race in college admissions, in the case of Grutter v. Bollinger, university officials moved quickly to adopt their own “Grutter”-style policy.  They called it a “holistic” plan that did not make race the decisive factor, but only one element in examining all of the contributions that each individual freshman applicant might bring to the campus.

The university concluded that the Top Ten Percent Plan, while it had shown some success in increasing enrollment of minorities at Texas, did not go far enough, so the new policy had to be adopted.  Abigail Fisher, who was not in the top ten percent of her graduating class in Sugarland, paid her $100 in admissions deposits and applied, unsuccessfully, for entry under the “Grutter”-like plan.

What Fisher decided to emphasize anew in her second appeal was a part of the Fifth Circuit ruling that she interpreted as disparaging the educational qualifications of students who had graduated in the top ten percent of high schools that were still largely segregated by race.

Instead of a “quantitative” use of racial diversity to shape the admissions policy (say, like a prohibited numerical quota), Fisher contended, the university with the blessing of the Fifth Circuit majority was using “qualitative diversity” — that is, seeking freshman students who had more appealing academic qualities than the graduates of segregated schools.

“Rigorous judicial review,” the new petition argued, “would have revealed that UT’s ‘qualitative’ diversity interest is in fact illegitimate.  It depends on the assumption that, as a group, minorities admitted through the Top Ten Percent Law are inherently limited in their ability to contribute to the university’s vision of a diverse student body, merely because many come from majority-minority communities.”  (A good part of that quotation had come directly from the dissenting opinion by Judge Emilio Garza, objecting to the Fifth Circuit’s new ruling.)

This, the filing contended, was “the very ill that the Equal Protection Clause seeks to banish.  Just as it cannot be assumed as a serious proposition that all individuals of the same race think alike, it cannot be assumed that all minorities admitted via the Top Ten Percent Law uniformly lack the unique talents and backgrounds UT claims to value.”

The university, in opposing Supreme Court review of the new appeal, argued that the notion of “qualitative diversity” is not novel at all, and, properly understood and applied, is at the heart of “holistic” review that aims at achieving a broader form of cultural diversity than any percentage plan could.  “Ensuring a diversity of backgrounds within — as well as among — racial groups is one of the best ways to help break down racial stereotypes and promote cross-racial understanding, and it underscores that the consideration of race truly is individualized and not based on stereotypes.”

Disputing the claim that Fisher also had made, that the Texas plan of 2004 was aimed at assuring admission of “more affluent minorities,” the university’s brief in opposition contended that the university “seeks in numerous ways to recruit students of all races from disadvantaged socioeconomic backgrounds.”  It is the richness of diversity that its policy pursues, the university argued, not a single-minded focus on racial selection.

When one searches for the reason that the Court was willing to take on Fisher’s case again, it is at least plausible that the explosive claim of racial discrimination as a justification for a “Grutter” plan caught the attention of at least some of the Justices.

In any event, the Court announced on June 29 that, once again, it would review Fisher’s case, with Justice Kagan again recused.

Briefs on the merits

Fisher’s brief on the merits opened with a blunt claim that the university had been engaging in a “runaround,” first trying to challenge her right to sue, then changing its goal of diversity, and finally turning to a new argument in favor of racial stereotypical “assumptions about high-achieving minority students from poorer neighborhoods.”  The Court, she argued, “must bring this runaround to an end.”

The nation, Fisher argued, is engaged in a “constructive dialogue” about the use of racial preferences, but that dialogue depends upon public universities being convinced that they must satisfy a strict scrutiny standard if they are to make any use of race in their admissions policies.  It is time for the Court, it added, not only to vindicate Fisher’s “equal protection rights,” but also to “remind universities that the use of race in admissions must be a last resort — not the rule.”

The body of Fisher’s brief spelled out her view of what a university must do if it aims to make any use of race to pursue a diversity goal: spell out clearly why it thinks it has a compelling interest in that goal, justify the use of race at the time a policy is first adopted, rather than with alternative arguments raised in later court proceedings, and come forward with evidence to prove that using race will achieve the diversity goal with means that are narrowly tailored to that goal.

The filing contended that the Fifth Circuit failed at each of these steps, preferring to accept the university’s changing rationale and ultimately, in the most recent review, allowing the university to claim a right to achieve diversity within racial groups — a claim that, the brief said, rests entirely on “naked assumptions” of less educational talent among minority students who gain automatic admissions under the Top Ten Percent Law.

On balance, much of the criticism of the Fifth Circuit and the current “Grutter”-style plan relied upon the challengers’ clear preference for the Top Ten Percent Plan — precisely because it is designed to be entirely neutral about the race of newly selected freshman classes.

The university’s merits brief opened with a suggestion that Fisher had “completely retooled” her arguments against the Texas admissions policy, shifting away from whether that policy is narrowly tailored to serve the goal of diversity to a proposal to totally deny the university any right to rely upon its own view of how diversity aids the educational experience.  Next, the university added, it is accused of pursuing a goal of “diversity within races” which the university said is only a “caricature” to suggest that the institution wants “more minority students from affluent communities.”  Fisher is wrong on both points, the university said.

In reaching its point-by-point argument in favor of its policy and against Fisher’s challenge, the university started with a plea to dismiss the case “for lack of standing” — the Article III point.  Fisher’s claim, filed on her own behalf and not as a representative of a class, became moot when she graduated from Louisiana State University three years ago, according to the university.

All that remains of Fisher’s claim is the minor sum she paid in admissions fees, which she would have paid even if she had been admitted, so she can claim no loss or harm, the university argued.  She thus has failed, it added, to show that a victory for her in striking down the policy would actually benefit her personally.  That, it said, is “a fatal deficiency under Article III.”

On the merits of the current plan, the university contended that the claim of educational benefits from diversity that the Texas institution has advanced is entirely sufficient to satisfy the Court’s Grutter decision.

It fervently insisted that it is not pursuing an interest in “favoring privileged minorities.”  It mounted an equally fervent defense of the use of “the de facto segregation [of high schools] that still exists in Texas,” to show that the Top Ten Percent Law has not succeeded in achieving the diversity goal and needed the “complement” of the “Grutter” policy.

If the Court is not satisfied that the university has not yet made a sufficient case in support of that policy, the university argued, the proper outcome is for the court to order a new trial, not to rule in Fisher’s favor.

The Obama administration has lined up on the university’s side, as it did when the case was reviewed two years ago and as it did when the case was sent back to the Fifth Circuit.  Again, its argument is focused partly on the government’s own interest in drawing personnel for civilian and military tasks from “a well-qualified and diverse pool of university and service academy graduates.”

The government agreed with the basic point made by Fisher that court review must be “rigorous” for a policy that takes race into account as one part of a larger selection model.  And, it agreed that the university must come forward with “concrete evidence” that increasing diversity is necessary to its educational goals.

It argued that the Texas plan does satisfy those demands, and it contended that the Top Ten Percent Law had resulted in a “stagnation” of black enrollment at the university, so campus officials were entitled to seek something more.

The amicus filings in the case are heavily weighted, at least in numbers, toward the university’s side.  There are sixty-seven such filings favoring the university, compared to sixteen in support of Abigail Fisher.  There are few real surprises on either side, however: Fisher is backed up largely by conservative and libertarian advocacy groups, and the university support is centered mainly in civil rights groups and progressive advocacy organizations, higher education institutions and their associations, retired military officers, and businesses which say that they rely heavily on diversity in higher education.

Among the universities that have made themselves allies of the University of Texas are Harvard and the University of North Carolina at Chapel Hill, whose admissions plans have been challenged in high-profile lawsuits by the same group of advocates that pursued the Texas case on behalf of Abigail Fisher.  In both of those cases, the lawsuits actually seek an overruling of the Grutter precedent and earlier “affirmative action” precedents.

One factor that might have influenced the numbers of amici in the Texas case is that supporters of “affirmative action” have interpreted the Court’s decision to look again at the racial diversity rationale as a more significant threat than the challenging groups have perceived.

The case is scheduled for a one-hour hearing on December 9.  Bert W. Rein of the Washington, D.C., law firm of Wiley Rein LLP will argue for Fisher, with thirty minutes of time.  The university will be represented by Gregory G. Garre of the Washington firm of Latham & Watkins LLP, with twenty minutes.  U.S. Solicitor General Donald B. Verrilli, Jr., will have ten minutes  to argue for the government as an amicus of the university.

Those are the same lawyers who argued the previous case, on October 10, 2012.

Recommended Citation: Lyle Denniston, Argument preview: What’s at issue in the Fisher case this time?, SCOTUSblog (Dec. 2, 2015, 12:39 AM),