Making a custom suit with no client in mind: Abigail Fisher returns to the Supreme Court

March 13, 2015 | By JOSHUA THOMPSON

Abigail Fisher’s equal protection claim is once again before the Supreme Court. Today PLF — joined by our friends at the Center for Equal Opportunity, the American Civil Rights Institute, Project 21, and the National Association of Scholars — filed this brief in support of her petition for certiorari. We asked the Supreme Court to take up her case once again because Supreme Court review is “needed to explain the limits on a public university’s discriminatory behavior.”

This case arises out of the University of Texas’s decision to to consider the race of student applicants when they apply for admission to the University. In 2007, after she was rejected for admission, Fisher sued the university arguing that the race-based admissions process violated her constitutional right to equal protection under the laws. After initially losing in the district court and the Fifth Circuit Court of Appeals, Fisher successfully petitioned the Supreme Court to review the Fifth Circuit decision.

In the summer of 2013, the Supreme Court reversed the Fifth Circuit.  In its opinion, the Supreme Court explained that the Fifth Circuit did not apply the correct standard of review. The Court explained that the University of Texas is not entitled to any deference that its chosen means to achieve diversity are necessary. The University must prove that it gave serious consideration to race-neutral alternatives, and that its decision to go race-conscious was a “last resort.”

Back in the Fifth Circuit, Fisher argued that under the Supreme Court’s decision, the University’s race-conscious policy violated her constitutional rights. After all, the University was unable to precisely identify what purpose its race-conscious policy served, how it was necessary to attain the benefits of diversity, or when it could stop engaging in racial discrimination. As PLF explained in its amicus brief, this is like making a custom suit with no client in mind. Nevertheless, the Fifth Circuit reaffirmed the district court’s decision, holding that the university’s race-conscious policy was needed to attain the benefits of a “diverse student body.”

The Supreme Court’s decision the first time around was haled as big victory.  For good reason too. The decision made clear that universities do not have unbridled discretion to discriminate in the name of diversity. It put serious teeth into the Grutter decision by requiring universities to prove the necessity of using racial preferences to achieve diversity. Since the University of Texas had already achieved an extremely diverse class through race-neutral means, few anticipated that they could show the necessity of using race-conscious means. Yet the Fifth Circuit still held that the University’s race-conscious plan was constitutional. Now Fisher is asking the Supreme Court to take up her case a second time, and this time is more important than the first.

PLF’s brief also puts forth studies conducted by the Center for Equal Opportunity showing that preferences are abundant across the country. If the Court will not put real teeth into strict scrutiny, there is little doubt that our nation’s public universities will continue to discriminate on the basis of race. Additionally, PLF’s brief presented public records requests by the Center for Equal Opportunity and the National Association of Scholars that demonstrate that public universities have ignored the Supreme Court’s Fisher decision. While Fisher counseled universities to take a serious look at their race-conscious policies, the dearth of responsive documents reveals that no university has seriously considered race-neutral alternatives, or analyzed whether the costs of their race-conscious policies outweigh the benefits.

If strict scrutiny is to have real bite in the context of race-based admissions, the Supreme Court needs to review this case and declare the University of Texas’s race-conscious policy unconstitutional.