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UT’s Missing Brief and Justice Kagan’s Recusal



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The procedural battle in the college admissions case of Fisher v. University of Texas has taken an interesting twist. As National Review Online has reported, lawyers for Abigail Fisher filed a petition for certiorari with the U.S. Supreme Court asking it to overturn the decision of the Fifth Circuit Court of Appeals. A three-judge panel of the Fifth Circuit had upheld the racially discriminatory admissions policy of the University of Texas in Austin (UT) over a strong dissent written by Chief Judge Edith Jones on behalf of seven out of the 16 judges on the court who wanted to take the case en banc and reverse the panel decision.

Ed Whelan has discussed the six sets of amicus briefs filed on behalf of Abigail Fisher. But the twist comes from the fact that the time for the University of Texas to file a brief in opposition to the petition has come and gone, so Texas has informally waived its right to file. The decision to waive filing a response indicates that Texas may be trying to stall the Court’s consideration of the petition. In the typical case, waiving a response can make sense because doing so may allow the case to fly below the radar and give the Court an opportunity to deny the petition without a response.

But this is not a normal case. It’s been watched closely by the Supreme Court bar and press since the end of the Court’s last term. The Court is highly likely to ask Texas for a response. So why does Texas remain silent? The state’s refusal to address what is obviously a very strong candidate for a certiorari grant strongly suggests that either it has nothing to say and is merely delaying the inevitable, or that it wanted to see what amicus briefs said about the case before it files a brief in response to a request from the Court.

Another red herring has also been raised in the Fisher case in a seeming effort to influence the Court the wrong way on Abigail Fisher’s request for review by the Supreme Court. A posting over at Just Enrichment that raises “lurking procedural defects” is not just way off the mark, it is legally frivolous. The blogger confuses the issue of standing (“Has Fisher stated an injury?”) with the issue of the merits (“Does Fisher win?”).  

Abigail Fisher’s standing to maintain this case cannot be seriously questioned. UT employs race as a discriminatory factor in admissions decisions to increase the enrollment of Hispanic and African-American students. Because Abigail Fisher’s application to UT was not given equal treatment as compared to these supposedly “underrepresented” minority groups, she suffered an injury under the Equal Protection Clause.

The Supreme Court said in Grutter v. Bollinger that “whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.” Thus, as Justice Powell explained in the even earlier case of Regents of the University of California v. Bakke, a plaintiff such as Abigail Fisher “is entitled to a judicial determination that the burden [s]he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.”

That Fisher, to obtain money damages, will have to prove that she would have been admitted to UT under a race-neutral system is entirely irrelevant to the fact that she has standing to maintain this action.

The blog post cites another case, Texas v. Lesage, to bolster its claims that Fisher lacks standing to sue UT. But the Lesage decision only showed that to recover money damages, a college applicant needs to show that he or she would have been admitted under a lawful admissions program. There is no suggestion in Lesage that the plaintiff there lacked standing. Indeed, the word “standing” never even appears in that opinion.

The post concedes that Fisher has standing to seek a declaration that UT’s use of race during her admissions cycle was unlawful. But it suggests that she will not be able to obtain forward-looking injunctive relief. Whether she is entitled to prospective relief, though, is entirely irrelevant to the fact that she has standing to maintain this action. As a factual matter, UT’s admissions program operates in essentially the same biased way now as when Ms. Fisher was denied admission in 2008. Thus, a declaration that UT’s use of race was unconstitutional in 2008 effectively declares UT’s use of race in the identical manner unconstitutional in 2011.

Thus the “lurking procedural defects” are not “procedural defects” at all. Nor are they “lurking.” Texas raised these very points before the Fifth Circuit. And the Fifth Circuit Court of Appeals correctly held that Fisher has “standing to challenge [her] rejection and to seek money damages for [her] injury.” This could include not only the cost of her original application, but the difference in lifetime earnings between a law graduate of UT and the law school she ended up at.

The real issue “lurking” in the Fisher case is that Justice Elena Kagan’s has an absolute obligation to recuse herself from the case and any consideration of the petition for cert. It turns out that she was still the solicitor general when the United States filed an amicus brief on March 12, 2010, in the Fifth Circuit in support of UT’s prejudiced admissions policy. That brief argued that UT’s admissions policy was justified by a “compelling interest in attaining the educational benefits of diversity.”

Under the Justice Department’s own regulations, the solicitor general is tasked with “[d]etermining whether a brief amicus curiae will be filed by the government, or whether the government will intervene, in any appellate court.” Thus, Justice Kagan is responsible for the final decision on whether DOJ should file an amicus brief in the Fifth Circuit. Because of the role she played in the case that is now before the Supreme Court, she must recuse herself.

Indeed, that is the conclusion that Tom Goldstein reached as a general matter at the much-read SCOTUSBLOG in an analysis of “Elena Kagan and Recusal” at the time of her nomination: “there are cases in which Kagan would be recused because of her personal role in authorizing lower court litigation. The Solicitor General must personally approve any appeal, rehearing request, or amicus brief by the government” (emphasis added).

Justice Kagan’s recusal has potentially profound implications for the case. If the request for review is granted, as most court-watchers expect, then without Justice Kagan’s vote, the liberal bloc at the Court needs Justice Kennedy’s vote for a 4–4 tie. With the four more conservative Justices likely to go against UT given their prior jurisprudence and views against racial discrimination, this means that the best UT can hope for on the merits of their admissions policy is a 4–4 tie.

To be sure, a 4–4 tie would affirm the Fifth Circuit’s inequitable decision and be a victory for UT. However — and this is the important part — affirmance by an equally divided vote would mean that there is no opinion for the Supreme Court. In other words, there is no way in Fisher for the Court to move any further left on the issue of affirmative action.

On the other hand, if Justice Kennedy were to side with the more conservative Justices (and remember that he dissented from Justice O’Conner’s decision authorizing discrimination in Grutter), the Court would have an opportunity to cut back or eliminate government-sponsored racial discrimination in higher education.

With everything to lose and nothing to gain, no wonder UT is stalling.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former Justice Department lawyer.



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