Tag Archives: Fisher v. University of Texas

The Hunter Becomes the Hunted: Will Schuette Hook Fisher?

On Tuesday, the Supreme Court heard oral argument in Schuette v. Coalition to Defend Affirmative Action, the latest case on affirmative action.  This came just a few months after the Court published its decision in Fisher v. University of Texas.  In Fisher, the question was whether race-conscious admissions policies at a public university were constitutional.  The Court in effect said yes, upholding limited affirmative action and allowing the University of Texas to continue its race-conscious admissions policies. 

The BBA’s amicus brief in Fisher highlighted the value of race-conscious admissions policies, and specifically focused on how they serve the legal profession by providing a diverse pipeline of undergraduate and law students. 

In Schuette, the Court is considering the constitutionality of Michigan’s 2006 state constitutional amendment, coming out of ballot initiative Proposal 2.  This prohibits preferential treatment based on race, color, sex, ethnicity, or national origin in state college admissions, jobs, and other publicly funded institutions.  In a sense, it is the reverse of Fisher – in Schuette, the question is whether the Constitution requires public universities to at least have the option of instituting race-conscious admissions policies like the University of Texas.

On Tuesday afternoon, each side had its 30 minutes before the Court .  The justices actively participated, asking many questions and framing the arguments.  John Bursch, Michigan’s state solicitor general argued that the Equal Protection Clause could not possibly require affirmative action plans for state institutions, because it barely permits them under only the strictest scrutiny.  He faced tough questions from Justices Sotomayor and Ginsburg, whose demeanors appeared to set them up as opponents to the constitutional amendment.  

Mark Rosenbaum and Shanta Driver argued on behalf of the plaintiffs that a constitutional ban on affirmative action was a violation of equal protection, but struggled to define the exact point of violation.  For example, Justices Roberts, Kennedy and Alito asked, if discretion to use race-conscious admissions policies was unconstitutional when enshrined in the state constitution, would it be constitutional if it was in the hands of the University Regents?  The University President?  The Legislature?  The Governor?

We look forward to hearing the Court’s answers.  Will the outcome impact the affirmative action victory we fought for in Fisher?  Only time will tell.  After all, as famed Supreme Court lawyer Ted Olson explained at the BBA’s Annual Meeting Luncheon, win or lose, we should be proud to have the Supreme Court.  It is a model for government institutions world-wide, because the arguments described here will result in written opinions this summer as the Court tackles yet another tough question. 

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Full Circle On Fisher

On Wednesday, September 11th, the College & University Law Section sponsored “Diversity in Higher Education: The Legal Landscape after Fisher v. University of Texas,” a discussion of compliance and strategic planning issues for academic institutions.  This program comes just over a year after the BBA filed an amicus brief in Fisher v. University of Texas in the wake of the U.S. Supreme Court’s ruling.

In Fisher v. University of Texas, the U.S. Supreme Court vacated and remanded the Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The case featured Abigail Fisher, a white woman who was denied admission, alleging that the University of Texas discriminated against her on the basis of race in violation of the Fourteenth Amendment’s Equal Protection Clause in its admissions decision.  The Court’s ruling in effect upheld race-conscious admissions, but also muddied the waters.

The BBA’s amicus brief in Fisher highlighted the value of race-conscious admissions policies.  The brief specifically focused on the need for a diverse pipeline of students for law schools and for the entire legal community.  The BBA’s brief warned that:

until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others.  Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

This week’s program provided attorneys with an opportunity to discuss the intricacies of Fisher and also its implications.  It changes how courts review affirmative action policies and creates compliance challenges for educational institutions.  Fisher put universities and race-conscious admission programs on alert.  Three major compliance challenges for colleges and universities are:

  • establishing a quantifiable interest in the educational benefits of a diverse student body;
  • proving that “workable, race-neutral alternatives” will not suffice; and
  • demonstrating that consideration of race is narrowly tailored. 

And with that, it all came full circle.  From amicus brief, to Supreme Court decision, to informational program, the BBA stayed on top of this important issue. 

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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One Week, Two Supreme Court Decisions and a Legislative Victory

We cheered affirmative action on Monday and by Thursday we were celebrating marriage equality, and, on a less dramatic note, also the fact that the Uniform Commercial Code had passed the Massachusetts Senate.  

• On Monday the Supreme Court, in a 7-1 ruling, remanded the University of Texas’ affirmative action admission case Fisher v. University of Texas et al. back to the U.S. Court of Appeals’ Fifth Circuit for further review.  By remanding the case for further proceedings, the Supreme Court ordered the appeals court to reconsider the case applying strict scrutiny. 

The Supreme Court did not go as far as declaring affirmatively that the use of race in admissions by the University of Texas is permissible, and the debates over affirmative action in higher education are far from over.

Last summer, we worked to put together a coalition to join us on the BBA’s amicus brief in Fisher.  That brief was consistent with the BBA’s long-standing position that race-conscious admissions policies are vital to diversifying the legal profession, and that not having such policies would harm the continued integration of the profession.

• Yesterday we celebrated the Supreme Court’s landmark ruling in United States v. Windsor striking down Section 3 of the federal Defense of Marriage Act (DOMA).  The Supreme Court decision affirms that all married couples deserve equal treatment from the federal government. 

In Massachusetts, our Supreme Judicial Court got it right with Goodridge in 2003.  While we became the first state to legalize same-sex marriage, there is still a lot of work ahead before marriage equality is recognized everywhere in the United States.  

• In the Massachusetts Senate yesterday there was a spirited debate of sorts on the Uniform Commercial Code (UCC).  Senator Tarr called the UCC both long awaited and worthy of summer beach reading.  Senator Candaras explained the amendments to the UCC and said it was good for economic development.  Senator Creem, tongue-in-cheek, said the UCC was a topic in which she tried to interest her constituents at political events.  Soon, she realized that her audience was asleep and it wouldn’t get her re-elected.   Humor aside, we are delighted that the Senate passed the bill yesterday and we await action by the governor. 

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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