- Will Consovoy, Consovoy McCarthy PLLC
On June 23, 2016, the Supreme Court decided Fisher v. Univ. of Texas at Austin. This is the second time the case has come before the high court. Abigail Fisher, a white female, applied for admission to the University of Texas at Austin (the University) but was denied. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court (Fisher I), which held that the appellate court erred in how it applied the strict scrutiny standard, improperly deferring to the University’s good faith in its use of racial classifications. On remand the Fifth Circuit again ruled in favor of the University, deeming its use of race in the admissions process narrowly tailored to a legitimate interest in achieving “the rich diversity that contributes to its academic mission.”
On its second trip to the Supreme Court, the question was whether the Fifth Circuit’s re-endorsement of the University’s use of racial preferences could be sustained under the Equal Protection Clause. By a vote of 4-3, the Supreme Court affirmed the judgment of the Fifth Circuit. Justice Kennedy delivered the opinion of the court, which held that the race-conscious admissions program in use at the time of Fisher’s application was narrowly tailored and lawful under the Equal Protection Clause. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Thomas filed a dissenting opinion. Justice Alito also filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined. Justice Kagan took no part in the consideration or decision of the case.
To discuss the case, we have Roger B. Clegg, who is President and General Counsel, Center for Equal Opportunity.
On June 23, 2016, the United States Supreme Court issued a 4-3 decision in Fisher v. University of Texas, upholding the University’s affirmative action program. It also announced a 4-4 tie in United States v. Texas, affirming the decision of the Fifth Circuit to block President Obama’s executive order on immigration. Our experts discussed both developments and answered audience questions.
On March 10, 2016, the D.C. Circuit Court of Appeals heard oral arguments in Rothe Development Corporation v. Department of Defense. Rothe alleges that Congress has failed to bring a statutory racial classification under section 8(a) of the Small Business Act into compliance with subsequent Supreme Court precedent as well as a 2008 decision in which the Federal Circuit Court of Appeals (in litigation also involving Rothe) unanimously struck down a Department of Defense affirmative action program as unconstitutional racial discrimination. The program struck down in Rothe required the DoD, the Coast Guard, the Air Force, and NASA to ensure that five percent of all contract dollars be awarded to individuals or businesses designated as disadvantaged individuals. Our expert argued the case before the D.C. Circuit.