Is Fisher moot?
The case of Abigail Fisher v. the University of Texas at Austin, an affirmative action case involving undergraduate admissions to UT-Austin, is scheduled to be heard by the U.S. Supreme Court some time this fall. I wrote about the case in an April BTL, and last night, I watched the broadcast on C-Span of a symposium hosted by the Cato Institute that dealt largely with cases that were disposed of in the spring; however, in the Q-and-A that followed, members of the audience asked questions about cases that will be heard in the October term. One of them was Fisher. The case did not spur a lively discussion. One legal scholar opined that UT would almost surely lose the case, that the Court has little sympathy for affirmative action. But another pointed out that the plaintiff has graduated from another college, in which case the Court could determine that the issue was moot and leave the case undecided. That is probably the best possible outcome for UT.
Tagged: higher education
Easy Money says:
Who cares. Affirmative action isn’t limited by the Constitution, so UT should be able to do whatever it wants.
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Blue Reply:
September 19th, 2012 at 1:09 pm
AA most certainly is limited by the Constitution both in its rationale (under Bakke) and by the scale of effect it can have (the Michigan cases).
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Absolutely Sweet Marie says:
UT-Austin gets a lot of tax dollars. Defending race-based preferences costs a lot in attorneys fees, and is a sure loser because they’re illegal. So it matters what UT-Austin does, especially in light of all these huge raises the System is handing out in the tail end of a recession. Maybe Mack Brown can pay the attorneys fees out of his $5 million. Lord knows, Vince Young can’t.
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Easy Money Reply:
September 19th, 2012 at 2:38 pm
Mack’s salary isn’t paid for by state money.
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WUSRPH Reply:
September 19th, 2012 at 4:26 pm
You are right that it is not “tax” money or permanent university fund…but any money taken in by a STATE INSTITUTION becomes STATE MONEY…The Leg. would be perfectly free to appropriate this income if it wanted to do so..and or limit how it is spent….But if you got those bozos involved they would probably pay Brown $25 million….
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Blue Reply:
September 20th, 2012 at 11:17 pm
A lot of the tuition taken in by institutions is, in fact, appropriated as GR-D and distributed back through the formula process.
I'm Pavlov. Ring a Bell? says:
It may be “the best possible outcome for UT” but what’s the best outcome for students and parents? In my mind, it’s providing some clarity to them on the merits of a race-based admissions process at public universities. At least this way, they’ll know, one way or the other, whether the color of someone’s skin is going to play a role in their educational attainment
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angelo says:
DeFunis v. Odegaard held that a law school applicant’s challenge to affirmative action was moot because he had been admitted pursuant to a temporary injunction and was in his final semester when the case arrived at the court. However, in that case, the degree in question was a terminal degree. In this case, the Plaintiff could apply for grad school or even decide to earn a second undergraduate degree so I think it is a little bit different. In addition, DeFunis was 5-4 decision with 4 liberal judges holding that the issue was not moot because they wanted to have it heard. As Justice Brennan stated: “Although the Court should, of course, avoid unnecessary decisions of constitutional questions, we should not transform principles of avoidance of constitutional decisions into devices for sidestepping resolution of difficult cases.”
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Jacob says:
I never understood the moot argument when it came to court cases. Most cases like this end up not benefiting the plaintiff as they don’t sit around and wait the long amount of time it takes to go to court and go back again and again. I thought the same argument was made during Roe v. Wade as the plaintiff had the child, but it was decided it was still relevant as it would effect others. Using the same idea wouldn’t AA cases still matter for other people in the future?
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LuzVilla'sGhost says:
As Jesse jackson would say, the question is moot!
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Easy Money says:
Lino Graglia would probably disagree, but affirmative action is needed, especially at a place like UT, which is one of the top schools in the country but sits in the middle of a state notorious for its backwards norms regarding equality issues.
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Anonymous says:
No, Paul. The case is not moot on at least two grounds:
One: She didn’t get to go to UT. Just because she went to another college and graduated doesn’t mean she graduated with a degree from UT. The case wasn’t moot when she was admitted elsewhere. It isn’t moot now. She was damaged (though the amount of damages is fairly nominal). That doesn’t change because she graduates from the other college.
Two: The court often hears a case after it becomes “moot” for the actual plaintiff if there is a risk of harm to other potential plaintiffs in the same class. So, it’s not moot because other people are applying to UT and getting rejected despite having superior qualifications compared to admitted minorities.
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Anonymous Reply:
September 19th, 2012 at 4:16 pm
How was she damaged? She would have to prove that getting a degree from LSU rather than from UT damaged here. While it is true that UT has the best law school a thousand miles in any direction, it is highly subjective and I’m not sure the court would buy it.
Also, she is white and probably rich, so I doubt she has a hard road ahead.
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Blue Dogs says:
Let’s be honest, affirmative action is all but DEAD already at this point.
There could be other ways to avoid racial preferences by focusing on two things:
1. Class
2. Economics
3. High school GPAs
Those 3 things are ways to promote diversity in the classroom.
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WUSRPH Reply:
September 19th, 2012 at 4:29 pm
The Leg. tried to do just that with the 10% rule which opened the doors of UT to hundreds of kids who otherwise would not have been able to attend…but you know what happened when it started affecting the ability of upper class, monied “legacies” to follow daddy and mommy….
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Bodhisattva Reply:
September 20th, 2012 at 8:03 am
The 10% Rule, by the way, also significantly enhanced the percentage of kids (of all races) from RURAL schools who were admitted to the flagship universities.
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anon-p Reply:
September 21st, 2012 at 9:10 am
Bodhisattva> The 10% Rule, by the way, also significantly enhanced the percentage of kids (of all races) from RURAL schools who were admitted to the flagship universities.
I don’t see that. I graduated from a rural public school with a graduating class size of barely two dozen.
I was admitted to UT Austin back in the day on the strength of my SAT score and grades, even though I was not the valedictorian or salutatorian. Today, it’s likely I would have been automatically excluded.
Absolutely Sweet Marie Reply:
September 19th, 2012 at 6:12 pm
And lower academic requirements for athletes is another way to avoid racial preferences
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Blue Dogs Reply:
September 20th, 2012 at 5:56 pm
Which explains they need to stop the dumb ass one-and-done rule in college basketball at UT.
UT needs to put STRICT restrictions on this at once: making these lazy a** kids on the basketball team stay in school for 3-4 years at least.
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Anonymous says:
Thats three things, not two.
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Jim says:
@Jacob, you are correct, courts often dismiss mootness arguments when it comes to cases described as “capable of repetition yet avoiding review.”
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Tex says:
Paul, Cato institute does not control John Roberts
Absolutely Sweet Marie Reply:
September 19th, 2012 at 6:12 pm
“And lower academic requirements for athletes is another way to avoid racial preferences”
I guess you hate football. I mean how many bonds have been floating to upgrade the stadium. Oh, thats right, forget that number, football pays for itself.
85 football players changes the makeup or 10,000 freshmen being admitted
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Anonymous says:
Paul, speaking of gold, what is this about Perry wanting to take possession of UT’s gold?
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JohnBernardBooks says:
Unfortunately UT has a long history of racial discrimination. UT was the last school to intergrated in the SWC and Texas and Arkansas played in the last all white national championship football game in 1969 called the big shootout. Arkansas proudly helped future prez Bill Clinton dodge the draft as the lilly white boys played on the field.
Guv John Connally and the bidenesque Preston Smith was Lt Guv.
makes you proud to be a democrat.
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Anonymous Reply:
September 20th, 2012 at 8:36 am
Where did you go to school? I bet you went to that fake military school in college station aka KKK U. that was all male for years.
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JohnBernardBooks Reply:
September 20th, 2012 at 3:27 pm
We have new rules practicing civility here or I would ask you to refrain from showing everyone how ignorant you are.
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BCinBCS Reply:
September 21st, 2012 at 2:13 am
@Anonymous 8:36 am – KKK U
Not to take the bait, but…
With its deep military tradition, A&M had a lot of
blacks as students in the late 60′s. What we needed were women students!
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Blue Dogs Reply:
September 20th, 2012 at 5:57 pm
Alabama didn’t integrate black players on Bear Bryant’s football team until like 1972 or 1973.
UT’s all-white football mess is Darrell Royal’s legacy when he passes away: it will be he didn’t want black players on his teams until intergration and the civil rights movement forced him to.’
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JohnBernardBooks Reply:
September 20th, 2012 at 6:01 pm
1970 Wilbur Jackson played at Ala
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Anonymous says:
Fact: UT is a majority minority school. Whites are NOT the majority at UT.
The question: When will we stop “checking the box”?
The Center for Equal Opportunity and the American Civil Rights Institute sum up best why a race-based admissions policy is wrong: “Americans are more likely to be multiethnic and multiracial. It is dangerous to allow racial and ethnic discrimination by public institutions to become wider and more entrenched.”
Don’t check the box.
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Kenneth D. Franks says:
When I get to the box that says, I always write No because I don’t run that much anymore.
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Kenneth D. Franks says:
Somehow I deleted the word “race.”
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Anonymous says:
Maybe we need a box for “rat” race.
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Blue Dogs says:
Anon, I don’t know if Burka got the news about Texas Supreme Court Justice Dale Wainwright (R) resigning from office effective Sept.30th, which will leave Wallace Jefferson and Eva Guzman as the only 2 people of color on the state’s highest court.
It seems to me that Wainwright may have seen someone planning to primary him in 2014, so he bailed out before he got “Carrillo’d”.
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anon says:
Justice Wainwright showed incredibly poor judgment by negotiating for and accepting a job while being a sitting justice on the Court.
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Blue Dogs Reply:
September 21st, 2012 at 10:20 am
Wainwright could have at least finished our his 2nd six-year term that he was elected to.
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