Affirmative-action foes urge Supreme Court to take Texas case

By Robert Barnes, December 18, 2011

Is the Supreme Court up for one more potentially divisive and game-changing case in a term that already holds the potential to be the most significant in decades?

Conservative activists and commentators are hoping the answer is yes, and want the court to reexamine its 2003 decision that state universities may consider an applicant’s race — in a limited way — in assembling diverse student bodies.

They have urged the court to accept the claim from a high school graduate from Sugar Land, Tex., that she was denied admission to the University of Texas because she is white.

But Texas has done all it can to give the justices a way out. It says that in just a few months, Abigail Noel Fisher will graduate from Louisiana State University — the school she attended instead of UT — and that the court will no longer have the actual case or controversy required before the justices take a case.

Fisher “lacks any ‘actual or imminent’ injury caused by UT-Austin’s future use of race-conscious admissions, and she cannot seek prospective relief,” Texas argued in its brief urging the court not to hear the case.

A second woman who sued UT, Rachel Michalewicz, has graduated from college and dropped out of the case, Texas said. (Perhaps in a first for a Supreme Court filing, it reports Michalewicz’s graduation based on her Facebook status, and uses the online roster of the LSU Bowling Club as evidence that Fisher is a senior.)

If the women had sued as part of a class action, Texas said, the claim might still be viable. But it says that the only damage Fisher can now claim is $100 in nonrefundable application fees, which it argues she would have had to pay even if UT had no race-conscious admission plan.

“Fisher’s petition is shot through with vehicle problems — all caused by her own decisions to sue as an individual plaintiff, and to demand relief that cannot redress the past injuries of which she complains,” Texas said.

Bert W. Rein, who represents Fisher, said Texas was attempting to “play cute” in its response, and said the state should “belly up and defend what they did” rather than seek to avoid the court’s review.

He will answer Texas’ arguments in a filing this week. He said he thinks the court will recognize the importance of the issue. It would be inconceivable, he added, that a student would put his or her life on hold in order to challenge UT’s policy.

More neutral observers say Texas has given the court a way out if the justices are looking to avoid another divisive issue in a term that will have them confronting President Obama’s health-care overhaul, Arizona’s attempt to crack down on illegal immigration and a redistricting case from Texas that puts the court at the heart of partisan politics.

“I think they raise a pretty serious issue,” said Irv Gornstein, director of the Georgetown Law Center’s Supreme Court Institute. He noted Texas’ reliance on a previous court decision, Defunis v. Odegaard, in which the court declared moot a man’s challenge of a law school admissions policy when his case reached the court during his final semester of law school.

Foes of affirmative action have been hoping the court would take the Texas case in order to reconsider its last major decision recognizing that states could consider race in some circumstances.

In the 5 to 4 decision in Grutter v. Bollinger, Justice Sandra Day O’Connor said the University of Michigan’s law school could consider race as part of a holistic evaluation of an applicant. O’Connor said government had a compelling interest in diversity, including seeking a “critical mass” of minority students.

Despite the go-ahead, many states — California, for instance — do not allow admissions officials to consider race in their decisions.

Texas has a unique system. It provides admission for those in the top 10 percent of their Texas high schools. Fisher did not make that cut, and was put into a pool of applicants in which race is considered along with a number of other factors, such as community service, leadership qualities, test scores and work experience.

The court will consider Fisher’s case next month. Rein said recent guidelines from the Obama administration that advise colleges and universities that they may still make race-based decisions to improve campus diversity show the need for the court to clarify the Grutter decision.

If the court takes the case, there would be time to hear it this term, or it could defer it until the next.

And Abigail Fisher, wherever she might be by then, could still make a major impact on the next chapter of the country’s continuing conflict over race.