September 10, 2015

Fisher: The final chapter?

By Joshua P. Thompson Senior Attorney

This morning PLF filed this amicus curiae brief in the Supreme Court of the United States in Fisher v. University of Texas at Austin.  We were joined on the brief by Center for Equal Opportunity, American Civil Rights Institute, National Association of Scholars, Project 21, Individual Rights Foundation, and Reason Foundation. This is the eighth — and hopefully the last — brief PLF filed in the case.

By now you know the facts, but they deserve repeating. The University of Texas at Austin has a race-based admissions policy that prefers individuals of certain races over individuals of other races. Abigail Fisher applied to be admitted to the University back in 2007 but was denied. She does not self-identify as one of the University’s preferred races. She brought suit against the University arguing that its admissions policy violated her Fourteenth Amendment right to Equal Protection of the laws.

Since then, Ms. Fisher has been on a legal roller coaster.  Her case was first decided by the Supreme Court in 2013. In that decision, the Supreme Court made clear that the lower courts had erred when they deferred to the University’s decision that it had used the least discriminatory means of achieving the educational benefits of diversity. The high court remanded the case back to the court of appeals to properly scrutinize the University’s race-based admissions policy.

Unfortunately, the court of appeals punted once again, surprisingly holding that even under the strictest form of scrutiny, the University proved that it used race only as a last resort to achieve the educational benefits of diversity.  That, more or less brings us to today, where Ms. Fisher is going before the Supreme Court a second time. This time, the Supreme Court is tasked with deciding whether the University violated Ms. Fisher’s constitutional rights.

PLF’s brief to the court explains the many ways in which the University’s admissions policy fails to satisfy the Constitution. First, the University made no attempt to define or quantify the “educational benefits” its race-based policy is designed to produce. Instead of identifying the object of its racial-preferences with precision — as the Supreme Court requires — the University simply points in the direction of Grutter — and affirms that if the Supreme Court found the law school’s racial preferences narrowly tailored in that case, then surely its racial preferences are also narrowly tailored. There are, however, a host of reasons why that may not be the case.

Second, the University failed to consider the costs of using racial preferences. For if the goal of a university is to use racial preferences to achieve the benefits of diversity, then it must be required to prove that those “benefits” outweigh the considerable costs. And the costs of racial preferences are many and undeniable. From mismatch to stigmatization to stereotyping to factionalism, identifying individuals as embodiments of some racial identity is counter-constitutional and costly.

Third, the University failed to prove that it could not use race-neutral measures to attain the educational benefits of diversity. Indeed, the evidence in this case demonstrated that before the University introduced racial preferences, it already had a student body that was over 20% comprised of individuals from so-called “underrepresented races.” Moreover, despite the immense costs of introducing race-based admissions on top this race-neutral success, the race-based policy had a de minimis effect on increasing the racial diversity at the University.

Of course, in addition to vindicating Ms. Fisher’s constitutional rights, this case has the potential to save untold numbers of students from unconstitutional racial discrimination. Universities across the country continue to use racial preferences in great numbers. [My alma mater, the University of Wisconsin-Madison is one of the worst offenders.] Universities have shown a prolonged unwillingness to stop discriminating on their own, despite many decisions from the Supreme Court telling them to scale back their use of race. Voters have banned racial preferences in a growing number of states — including California — but a decision by the Supreme Court in this case is needed for the thousands of students still subject to these pernicious policies.

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