Tuesday, October 9, 2012
The oral argument in Fisher v. UT - - - this term's "affirmative action" case - - - is scheduled for tomorrow and has been receiving much attention as SCOTUSBlog notes. One of the more interesting pieces is Adam Liptak's personalized NYT article that includes quotes from Abigal Fisher, who believes she "probably would have gotten a better job offer" if she had "gone to U.T.," as well as quotes from students. There is noteworthy scholarly attention. And as usual Lyle Denniston over at SCOTUSBlog does an excellent job parsing the issues as well as the possible line-ups of the Justices, asking provocatively "is affirmative action about to end?" Moreover, still one of the best templates of the issues is the "dissental" from en banc review in the Fifth Circuit by controversial Judge Edith Jones.
To the extent constitutional and legal arguments matter - - - and for some, that is a debatable question - - - there are several problematic twists that Fisher v. UT presents.
First, there is the standing of Abigal Fisher and relatedly, her claim for injury. This is not a case in which she was disabled from competing from any specific seat, unlike Bakke, and this is also a case in which she did attend university, unlike Barbara Grutter who did not attend law school. Adam Chandler has a terrific explanation of this aspect of the case, that he expanded here.
Second, there are factual discrepancies, and a problematic concession by Fisher regarding UT's government interest in seeking diversity.
If the Justices seem focused on the facts of the case during oral argument, this might be an indication that the Court would not render a decision on the merits because of these sorts of problems.
Third, there is a doctrinal issue in the case that bears notice. As one of its three sub-arguments that the UT plan fails strict scrutiny, Fisher argues that "UT cannot establish a strong basis in evidence that its use of race is necessary to further a compelling interest in student-body diversity." Sandwiched between the usual first prong of the "compelling interest" requirement and the second prong of the "narrowly tailored" requirement, this argument seeks to introduce a new prong. Fisher's argument in the main brief is telling:
UT also must demonstrate that its use of race in admissions is “necessary to further” an unmet compelling government interest. Adarand, 515 U.S. at 237. This demonstration of necessity requires a “strong basis in evidence.” Wygant, 476 U.S. at 277; Croson, 488 U.S. at 500; Grutter, 539 U.S. at 387-88 (Kennedy, J., dissenting) (“Our precedents provide a basis for the Court’s acceptance of a university’s considered judgment that racial diversity among students can further its educational task, when supported by empirical evidence.”) (emphasis added).
Recall that Adarand, Wygant, and Croson each involved "remedying past discrimination" as the compelling government interest (not diversity) and note that the citation from the 2003 Grutter v. Bollinger is from Justice Kennedy's dissent. Kennedy is widely considered the swing vote in Fisher, and much of UT's brief seems addressed to Kennedy.
Nevertheless, this "strong basis in evidence" standard is, of course, directly opposed to the "good faith" standard that Justice O'Connor articulated in Grutter. T he Court could easily "gloss" rather than explicitly overrule Grutter by reading in a high - - - and nearly impossible to meet - - - evidentiary standard.
Thus, at the heart of the matter may be just how much deference the Justices may be willing to pay to a state, including a state university, or how much the "unelected federal judiciary" may substitute its own judgments.
UPDATE: discussion of oral argument here.