It has been widely reported that the University of Texas has decided to forgo representation from the Texas Attorney General’s Office in Fisher. Instead, the University is going to spend $1 million on outside counsel. That price tag is for one opposition brief and the oral argument. Doesn’t one million dollars seem a bit high?
A number of blogs have commented on the hefty price tag that the University is laying on the taxpayers (or students). What strikes me as odd, however, is that this law firm is not likely to do any better than the Attorney General’s Office at convincing the Supreme Court to uphold the discriminatory policy. The AG won at the district court and won at the court of appeals (twice). Who pulls the starting pitcher when he is pitching a no-hitter?
Further, the issues involved in Fisher are fairly straightforward, and a new fancy law firm isn’t going to be able to pull a rabbit out of a hat and come up with some new radical theory that didn’t occur to the AG. The University only gets to file one opposition brief. It is going to try to rebut the issues raised in the opening brief by Ms. Fisher’s attorneys. And the University already knows what those issues are, they have been arguing them for five years.
The interesting briefs in Fisher are going to come from the amici — including Pacific Legal Foundation — who will bring out all of the big issues that are present in Fisher, but will not be addressed by the parties. Issues that the amici are sure to address include whether Grutter should be overruled, whether preferences actually hurt minority students, and whether overtly disadvantaging Asian students can be historically justified. But the Universitiy’s attorneys won’t speak to those issues.
But the worst thing about this new hire is the sheer absurdity of spending $1 million in the hope that they can continue to discriminate against a few white and Asian students.