Posted on December 7, 2011 at 7:26 pm by Lyle Denniston
Making a strenuous effort to keep the Supreme Court from ruling on the constitutionality of its freshman college admission plan, the University of Texas at Austin argued on Wednesday that the young white woman pursuing the case will not be eligible to press it within a matter of months, and will have no claim after that. More than two-thirds of the 40-page filing is devoted to arguments that the case is too flawed to lead the Court into a new examination of the use of race in choosing college entrants. The filing was in response to the Court’s request in October (see this post). A report on the case of Fisher v. University of Texas at Austin (docket 11-345) when filed in mid-September can be read here.
Abigail Noel Fisher, of Sugarland, Texas, has argued that the state’s flagship university excluded her because she is white, under a race-based admissions program that it adopted after the Supreme Court in 2003 upheld the use of race as a factor in choosing those who could enroll in the University of Michigan’s law school (Grutter v. Bollinger). Her petition has not yet been scheduled for consideration by the Justices; it probably will be set for initial action in January. If the Court were to grant review, it is unclear whether that would be in time for a ruling during the current Term.
In replying to the Fisher challenge, the university’s lawyers mounted a sweeping attack on the “intractable” procedural defects they said permeated her case. The most significant one was that Ms. Fisher will graduate in May from Louisiana State University, and thus would not be eligible, even if she wished, to try to get admitted to the Texas institution as a freshman. Her case, the brief argued, will become moot with her graduation, because she chose to sue as an individual, rather than as a member of a class of applicants who did not gain admission. Another young woman who had joined in the case earlier has dropped out, it noted.
Moreover, the university said that her claim for a refund of a $50 application fee and a $50 housing deposit are not enough to keep her case alive, since the university could simply make the case moot on that point by opting to refund the money even though the payments she made were not considered refundable. The university would provide such a refund, its brief said, “rather than incur the massive expenses of litigating this case to conclusion in this Court.”
In addition, the university document said her lawyers made significant concessions during the lawsuit, about the admissions policy, and those undermine her claims of an illegal admissions system. Her petition has argued that she was a victim of an invalid “blatant racial balancing” policy.
Although Ms. Fisher herself did not urge the Supreme Court to reconsider its Grutter decision and impose new limits on race-based college admissions programs, the university brief pointed out, some of the friend-of-court briefs seek to make that point. The university contended that the Fifth Circuit Court ruling upholding its current policy is not in conflict with the Grutter decision, as Ms. Fisher’s petition does argue. There is no conflict in the federal appeals courts on the issue, it contended.