August 5, 2014

PLF continues to support Abigail Fisher

By Joshua P. Thompson Senior Attorney

Yesterday PLF filed this brief amicus curiae in support of Abigail Fisher.  PLF was joined on the brief by our friends from Center for Equal Opportunity, Project 21, Reason Foundation, and Individual Rights Foundation.  Ms. Fisher continues to fight for her right to be treated equally under the law.  As you recall, last year the Supreme Court reversed a Fifth Circuit decision that had upheld the University of Texas’s race-conscious admissions plan.  The Supreme Court held that the Fifth Circuit failed to apply “strict scrutiny,” and remanded the case with instructions that the Fifth Circuit truly scrutinize the University’s race-conscious admissions plan.

Last month the Fifth Circuit Court of Appeals decided — once again — that the University’s race-conscious admissions plan survived strict scrutiny.  However, the Court once again failed to apply strict scrutiny to the University’s discriminatory plan.  Instead of carefully examining whether the University “needed” to adopt race-conscious measures to achieve a “critical mass” of diverse students, the panel held that the policy was constitutional because it was similar to the plan adopted by the law school in Grutter. But that is both factually inaccurate and legally irrelevant.

The University of Texas’s race-conscious admissions plan is nothing like the plan approved in Grutter.  In Grutter, the law school argued that it needed to adopt racial preferences in order to attain a “critical mass” of underrepresented minority students in the school.  In contrast, the University of Texas argues that it needs to adopt racial preferences because it has too many lower-class minority students.  Texas’s Top Ten Percent Law requires the University to admit any student who graduates in the top ten percent of her high school class.  According to the University, this produces a lot of lower-class diversity, but not enough upper-class diversity. The University argues it needs racial preferences in order to admit more upper-class minority students.

Nor is the similarity between the University’s plan and the plan approved in Grutter legally relevant. The Supreme Court  declared in Fisher, that each university that endeavors to use race-conscious admissions must prove the necessity of using such pernicious criteria. Not every institution is the same; using race in admissions to an elite law school in Michigan in 2003 is not the same as using race at an undergraduate institution in Texas in 2014.  In other words, even assuming the University’s plan was identical to that employed by the University of Michigan law school, it must still prove that racial preferences are necessary in order “to achieve the benefits that flow from a diverse students body.”

PLF’s brief focuses on the panel’s decision to ignore this Supreme Court mandate.  A court reviewing a university’s decision to use race must weigh the costs and benefits of that particular university’s invocation of race.  If the costs outweigh the benefits — which they almost always do with racial preferences — it is decidedly not “necessary” that the university discriminates against its incoming class.  PLF urges the Fifth Circuit to take up Ms. Fisher’s case en banc.

 

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