Professor and Attorneys Discuss Fisher v. University of Texas

October 11, 2012 —

Fisher v. University of Texas is now in the Supreme Court’s hands, but the experts at Georgetown Law have been weighing the matter for weeks. 

The latest was on October 3, when Georgetown Law Professor Susan Low Bloch led a panel hosted by the Law Center’s American Civil Liberties Union, the American Constitution Society and the Federalist Society.  The oral argument of respondent University of Texas was mooted here the same day.

Fisher, as Bloch noted, is “the most recent in a fairly long line of affirmative action cases dating back to the 1970s.” In the 2003 case Grutter v. Bollinger the Court held that a university may consider race as part of an individualized, holistic admissions process tailored to achieve a diverse student body.

But Fisher asks whether the University of Texas can consider race in admissions decisions under a plan that already ensures diversity without it. The university automatically admits students graduating in the top 10 percent of percent of their state high school classes — which acts to enhance diversity in the classroom — then proceeds to consider race as a factor in the remaining admissions decisions, a system that petitioner Abigail Fisher says violates the Constitution’s Equal Protection Clause. 

Panelists — which included attorneys Elise Boddie, Ilya Shapiro, David Gans and Susan Buckley — explored possible outcomes, including a limited holding or a 4-4 tie, since Justice Kagan recused herself from the case. 

“The University of Texas [has an] interest in deciding who to educate, how to educate, who should teach and how they should be taught,” said Buckley, one of the attorneys who filed an amicus brief on behalf of six Catholic universities including Georgetown. But “you have to take the First Amendment ‘thumb’ and put it on the scale in this case too.” 

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