October 6, 2015

Fisher: Is the Roberts Court playing the long game?

By Wen Fa Attorney

This week marks the start of another exciting Supreme Court term. One of the biggest cases this year is Fisher v. University of Texas at Austin, now at the Court for the second time. Two years ago, the Supreme Court held that the Fifth Circuit’s review of the University’s race-based admissions policy was too deferential, and gave the circuit court a second chance to evaluate the policy under strict scrutiny, the most stringent standard in constitutional law. But the lower court just upheld the program a second time, and the Supreme Court once again took the case up for review.

Many believe that the Court will do now what it should have done two years ago: invalidate the University’s racial preferences on equal protection grounds. As you might expect, the prospect that Universities will no longer be allowed to use racial preferences has rattled the nerves of many who believe that Universities must be permitted to take race into account. A Huffington Post article yesterday accused the Roberts Court of playing the long game. The article suggests that the Court is using this case as part of a masterful plan to invalidate affirmative action programs at Harvard University and the University of North Carolina down the road.

But none of this is quite right. Cases move slowly, and even a best case scenario subjects hordes of prospective students to the well-known costs of racial preferences—from mismatch to stigmatization to stereotyping to factionalism—before the Court could step in. In all events, the Court could have ended racial preferences in higher education two years ago, if it had adopted the arguments set forth in PLF’s amicus brief the first time this case was before the Court.

As PLF’s amicus brief in this case highlights, the “long game” is actually allowing universities unfettered discretion to use racial preferences. Statistical evidence from Arizona to Wisconsin to Utah to North Carolina shows that students, who are identical in every relevant respect, are being treated unequally solely on the basis of race. That is discrimination, of course, and we hope the Court will end it right away.

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