Phi Beta Cons

The Right take on higher education.

Good Amicus Briefs in Fisher v. University of Texas


As PBC readers know, a petition for a writ of certiorari was filed last month with the U.S. Supreme Court by the plaintiff in Fisher v. University of Texas, a case challenging the use of racial and ethnic preferences in undergraduate admissions. Last week, a number of amicus briefs were filed, likewise urging the Court to grant review. Among those filing amicus briefs were the California Association of Scholars and Center for Constitutional Jurisprudence, the Asian American Legal Foundation, U.S. Commission on Civil Rights members Todd Gaziano, Gail Heriot, and Peter Kirsanow, Mountain States Legal Foundation, and Richard Sander and Stuart Taylor, as well as the Pacific Legal Foundation (the latter’s brief was joined by my organization, the Center for Equal Opportunity, as well as the American Civil Rights Institute, National Association of Scholars, and Project 21). 

The briefs make a powerful case that this is an issue the Court needs to take up again, over eight years after its 2003 decisions in the University of Michigan cases, Gratz v. Bollinger and Grutter v. Bollinger.  Preferences remain entrenched and severe, rather than fading away; the Court’s factual premises in the University of Michigan cases have been dramatically undermined by empirical data; universities all over the country — like those in the University of California system and the University of Texas itself, prior to its reintroduction of preferences after the Gratz and Grutter decisions — have been able to thrive without racial and ethnic admission preferences; and it is increasingly clear that among the casualties of these discriminatory policies are not only the white and Asian students who are discriminated against, but also the African American and Latino students who are supposedly their beneficiaries, because their academic careers and professional lives are damaged by the resulting academic mismatches. Oh, and the preferences used by the University of Texas cannot be squared with the Constitution, the nation’s civil-rights statutes, or the Court’s own jurisprudence, including the University of Michigan cases and the Court’s subsequent decision striking down race-based K–12 school assignments in Seattle and Louisville.


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