- Will Consovoy, Consovoy McCarthy PLLC
Two years ago, the Supreme Court’s 7-1 ruling in Fisher v. University of Texas required race-conscious college admissions programs to be subject to strict judicial scrutiny, mandating that such programs be narrowly tailored to serve a compelling government interest. On remand, the Fifth Circuit upheld the University of Texas’ admission policy as meeting that standard, but the case will once again be considered by the Supreme Court, and was argued on December 9. What are the issues now under consideration, and what are the arguments of each party? Why has the case returned to the Court a second time?
Gail Heriot, Professor of Law at the University of San Diego school of law, discusses Fisher v. University of Texas at Austin in which the Fifth Circuit re-endorsed the use of racial preferences in undergraduate admissions decisions. Fisher alleges that the use of such preferences violates the Equal Protection Clause of the Fourteenth Amendment. The University of Texas denies violating the Constitution.
The battle over the use of affirmative action in college admissions seems far from over, as the recent filing of two federal lawsuits demonstrates. The Project for Fair Representation recently sued both Harvard University and the University of North Carolina at Chapel Hill for allegedly capping the number of Asian-Americans they admit and using racial classifications to engage in invidious discrimination. Edward Blum and William Consovoy provided a litigation update on these and other cases.
While the Supreme Court in City of Richmond v. J.A. Croson Co. (1989) and Adarand Constructors, Inc. v. Pena (1995) handed down landmark decisions against the use of racial preferences in government contracting, the practice continues. One of the largest such federal programs is run by the Small Business Administration, but Rothe Development Co. has now challenged it, in a case where the federal district court will hear oral argument later this month. The lawyer in that case -- who also represented Rothe in its successful challenge to a similar U.S. Department of Defense program -- is David Barton, and he discussed the case in this Teleforum. Also participating in the discussion was Roger Clegg, President and General Counsel of the Center for Equal Opportunity.