Texas Argues Against Supreme Court Review of Its Use of Race in Admissions

December 08, 2011

The University of Texas at Austin has urged the U.S. Supreme Court not to take up a lawsuit challenging the university's race-conscious admission policy, arguing in a brief filed Wednesday that the plaintiff lacks standing and that her lawyers' reasons for asking the justices to hear the case miss the mark.

The plaintiff's lawyers filed a petition in October asking the Supreme Court to hear their appeal of a decision by the U.S. Court of Appeals for the Fifth Circuit upholding the university's consideration of race in undergraduate admissions. Several conservative advocacy groups submitted friend-of-the-court briefs on behalf of the plaintiff—Abigail Noel Fisher, a white student who was rejected by the university in 2008—similarly urging the Supreme Court to overturn the Fifth Circuit's ruling.

The Supreme Court is expected to decide by mid-January whether to take up the case.

The brief submitted Wednesday on the university's behalf was prepared by Texas's solicitor general, Jonathan F. Mitchell, and signed by the state's attorney general, Greg Abbott, and other lawyers for the university and the state. Patricia C. Ohlendorf, the university's vice president for legal affairs, said she did not expect any friend-of-the-court briefs to be submitted on the university's behalf at this stage of Supreme Court proceedings.

The brief for the university argues that Ms. Fisher's request for the justices to take up the case "is shot through" with problems that make the case unsuitable for Supreme Court review. All, it says, are caused by her decision to sue as an individual—rather than file a class-action lawsuit—and to demand that the university provide her with compensation that it is unable to give. (A second white student who had been rejected by the university, Rachel Multer Michalewicz, joined the case as a plaintiff as it was considered by the lower courts, but she is not mentioned in the petition for Supreme Court review, for reasons the petition does not explain.)

Because Ms. Fisher has enrolled at Louisiana State University, where she expected to graduate in May 2012, "she cannot possibly assert an intent to apply to UT-Austin as a freshman or transfer student," Texas' brief says. It likens her case to that of another famous legal opponent of race-conscious admissions, Marco DeFunis, whose challenge to the University of Washington law school's policy was declared moot by the Supreme Court in 1974 because a lower federal court had ordered him admitted to the law school while the case was pending and he was within a year of graduating.

In addition, Texas' brief says, the university cannot give Ms. Fisher what her lawsuit asks the courts to order her—the refund of a $50 application fee and a $50 housing deposit—because she would have been out that money regardless of whether the university had admitted or rejected her. Even if the court did think she had a claim, the brief says, the university could render the case moot simply by handing her $100.

The brief also argues that the case is unripe for the Supreme Court's consideration because there is no disagreement between the federal circuit courts on the key legal questions at issue. Moreover, the brief says, the facts of the case are so specific to the University of Texas—centering heavily on the efficacy of the state's "top 10 percent" law guaranteeing students admission to public universities based on high-school class rank—that any judgment rendered on her behalf is likely to have little relevance anywhere else.

The university also denies arguments put forward by Ms. Fisher's lawyers that its consideration of race goes beyond the guidelines handed down by the Supreme Court in its 2003 Grutter v. Bollinger decision, upholding the consideration of applicants' race by the University of Michigan's law school. The Texas policy is even more narrowly tailored to serve a compelling government interest than was the Michigan law school's policy, the brief argues, because Texas does not engage in a practice that troubled the dissenting justices in the Grutter decision, keeping a continuing tally of the racial composition of a class during the admissions process.

And, although the Grutter decision said higher-education institutions should give "serious, good-faith consideration" to "workable race-neutral alternatives" to race-conscious admission, Texas, which admits many of its students through the race-neutral top 10-percent guarantee, considers race in a much smaller share of admissions decisions than Michigan did.

Several of the groups that filed friend-of-the-court briefs on behalf of Ms. Fisher argued that the Supreme Court should take up the case and use it as vehicle for reconsidering or overruling its Grutter decision. Texas's brief argues that the Supreme Court's reconsideration of Grutter "would be particularly ill-advised" because Ms. Fisher's own filings do not challenge that decision's core premise, that state universities have a compelling interest in assembling racially diverse student bodies.

The lawyers for Ms. Fisher argued in their brief to the Supreme Court that the Fifth Circuit panel erred in relying too heavily on the university's "good faith" in accepting its assertions that it had tailored its policies to be constitutional. They also argued that the Fifth Circuit judges were mistaken in accepting the university's arguments that its admissions policies needed to take into account the state's demographics and that it needed to have racial and ethnic diversity at the classroom level. Achieving classroom diversity, they argued, would require the university to make major changes in the curriculum, steer students into certain schools and majors, or make race such a dominant consideration in admissions that "a flood of minority students would solve the problem."