The Supreme Court heard oral argument in Fisher v. University of Texas today. As our regular readers know by now, this case concerns the University of Texas’ (UT) use of race in composing its undergraduate class. While most of the oral argument focused on the merits of the case, Justice Ruth Bader Ginsburg asked a question about a threshold issue which may prevent the Supreme Court from addressing the legality of UT’s affirmative action program: does Abigail Fisher have standing to sue. In particular, Justice Ginsburg asked Fisher’s counsel whether the case would be mooted if UT offered to refund her application fee.
Even if seeking a refund on her application fee was her only basis for standing, UT could not moot Fisher’s case by offering a refund. For any federal court to hear a case, the issue(s) presented must not be moot. In other words, the case must have not been resolved. For example, say a speaker sues a city for having a law which burdens his right to free speech. The city could try to moot the case by repealing the law because the speaker’s right would no longer be burdened.
Mootness is particularly interesting issue right now because the Supreme Court is considering the scope of the doctrine in Campbell-Ewald Company v. Gomez. In that case, which was heard by the Supreme Court in October, the main issue is whether a case becomes moot if the plaintiff receives a full offer of complete relief on his claim. For example, if a plaintiff seeks $100 in damages, may a defendant moot the case by offering to pay the $100? If the Supreme Court answers in the affirmative, some have suggested that UT might be able to moot Fisher’s case by offering to refund her application fee.
Regardless of how Campbell-Ewald is decided, Fisher should be able to proceed with her case. The Supreme Court could hear Fisher’s case because her injury is “capable of repetition, yet evading review.” The “capable of repetition, yet evading review” doctrine allows a case to be heard, even if it would otherwise be moot. This doctrine exists because the Court recognizes that sometimes, a person will face a similar injury in the future, but the nature of the injury makes it unlikely the person will receive full judicial review before the condition changes.
Even though the “capable of repetition, yet evading review” doctrine is a narrow one, Fisher’s case is a situation in which the Court should invoke it if necessary. While the Supreme Court held that previous affirmative action challenges do not fall under this exception, circumstances have shown that the Court should reconsider its precedent. In DeFunis v. Odegaard, the Court declined to apply the “capable of repetition, yet evading review” exception to a mooted case that challenged the University of Washington School of Law’s affirmative action program. The Court reasoned that the student would never face the same allegedly discriminatory program again and others could raise the same claim in the future.
Though DeFunis appears to foreclose Fisher invoking the “capable of repetition, yet evading review” exception, the Court should expand the doctrine because a contrary decision may make it near impossible to bring future affirmative action challenges. If Fisher’s case is mooted, a school could moot a future applicant’s affirmative action challenge by offering to refund that applicant’s application fee. UT argued that Fisher should have brought a class action to avoid the mootness problem. This too, is not a good solution because the Supreme Court has tightened the class action requirements over the past decade, making it more difficult to bring such a challenge. Indeed, it would not be surprising for schools to refund application fees to avoid affirmative action challenges since universities have proven unable to use race as a limited consideration.
Mooting Fisher’s case would create precedent that effectively allows universities to avoid defending their use of race in college admissions. In Grutter v. Bollinger, a 2003 case in which the Supreme Court upheld the narrow use of race in college admissions, the Court noted that affirmative action would likely be unconstitutional 25 years in the future. The Supreme Court should reject any potential actions UT may take to prevent it from making a ruling on the merits. A decision today which avoids the merits may potentially create more doctrine that makes it difficult for future litigants to challenge race-concious affirmative action programs, especially when these programs’ constitutionality comes into more doubt.