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August 6, 2013

The University of Texas Will Have to Fight Its Own Battle

By

A fascinating development in the Fisher v. Univ. of Texas at Austin case: The Texas solicitor general yesterday notified the Fifth Circuit Court of Appeals that Attorney General Greg Abbott is no longer representing the university.

NRO readers will recall that Abigail Fisher, who was denied admission to UT, sued the university after she discovered that less qualified black and Hispanic applicants had been admitted. The U.S. Supreme Court accepted review of this case, and opponents of discriminatory admissions policies hoped that the justices would overturn the 2003 Grutter v. Bollinger decision that established the terrible policy that “racial diversity” could be considered a compelling state interest that allows universities to take race into account in their admissions criteria.

Unfortunately, the Supreme Court did not overturn Grutter. Instead, on June 24, it handed down a decision that said the Fifth Circuit had given too much deference to university officials in terms of how they satisfied the “compelling interest” standard.

The decision, written by Justice Kennedy, stated that courts must apply strict scrutiny (the highest level of review) to any university admissions policy that takes race into account. Moreover, Kennedy wrote, such practices must be narrowly tailored, and courts — not university officials — must determine that (1) students are evaluated as individuals, not in a way that makes race the defining feature of their application; (2) the use of race is necessary to achieve the educational benefits of diversity, and (3) there is no less restrictive, race-neutral alternative available that will achieve the same diversity. Courts cannot rely on the supposed “good faith” of university officials, as the Fifth Circuit did in its initial opinion overturned by the High Court.

The U.S. Supreme Court remanded Fisher’s case to the Fifth Circuit and instructed the appeals court to review UT’s admissions policy under the proper strict standard. The appeals court must assess whether UT offered sufficient evidence to prove that its admissions policy fit within the guidelines laid out by the Supreme Court in Grutter.

Now Texas is telling the Fifth Circuit that it will not represent UT in the reexamination of the case. There is no reason given in the letter, although it was sent shortly after Attorney General Abbott (my former law-school classmate at Vanderbilt University) announced he is running for governor. However, an individual involved in the case tells me that this may have something to do with UT’s latest legal strategy in the case.

UT has filed a motion asking the Fifth Circuit to return the case to the federal district court for review. UT apparently wants to reopen the case to relitigate two issues that it had unsuccessfully argued before: that Abigail Fisher had no standing to bring her suit in the first place and that she suffered no harm. This tactic would allow UT to delay having its admissions policy reviewed and possibly thrown out if the court finds it fails the strict scrutiny test. This delay might also allow the university to admit another one or two freshmen classes using its current discriminatory criteria.

UT and the Texas AG have repeatedly made these arguments about standing and harm throughout this litigation. But the difference now may be that the attorney general does not want to have to explain on the campaign trail why he continues to fight on behalf of a discriminatory admissions policy or why he believes that Abigail Fisher, who was denied admission to a premier Texas university solely because of her race, was not harmed by that fundamentally unfair decision.

We can come to one firm conclusion: Racial discrimination in college admissions is morally wrong, no matter what the Supreme Court says about it. Kudos to Greg Abbott for abandoning UT — let the university try to justify its biased actions on its own.

Lauren Bean, the Deputy Communications Director for the Texas AG, says that they have not been representing the University of Texas at Austin since Spring 2012 when UT informed the AG that the university wanted outside counsel to represent them before the U.S. Supreme Court. As you can see from the letters that she sent me, Texas had represented UT-Austin up through the Fifth Circuit. On April 2, the Office of the Texas AG told William Powers, Jr., the president of UT-Austin, that while the AG remained “ready, willing, and able to continue representing the University of Texas in the Fisher case,” they were willing to “defer” to Powers’s request for outside counsel before the Supreme Court.

Readers can make their own judgment about this.  But it seems that the only reason Texas did not represent UT-Austin before the U.S. Supreme Court is because the university requested its own counsel.  And now the Texas AG will not represent UT-Austin before the Fifth Circuit as it did on the first round of the Fisher case.

- Hans A. von Spakovsky is senior legal fellow at The Heritage Foundation.

First appeared in National Review's "The Corner"

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