U.S. SUPREME COURT HEARS CASE ON RACIALISM BY UNIVERSITIES

October 1, 2012 - DENVER, CO.  A friend of the court brief by a western nonprofit, public-interest legal foundation was before the Supreme Court of the United States today when the Court heard arguments on ending the use of racial quotas by universities by overturning a 2003 Supreme Court ruling.  Mountain States Legal Foundation (MSLF), which won a landmark civil rights decision by the Supreme Court, filed a friend of the court brief urging the Court to reverse a ruling by a U.S. Court of Appeals for the Fifth Circuit panel upholding the University of Texas at Austin's right to use the race of a Texas coed, Abigail Noel Fisher, to reject her.  Earlier, MSLF had urged the Court to hear the case because the panel's ruling conflicts with the Court's legal precedents.  In January 2011, a three-judge panel upheld an earlier ruling by a Texas federal district court that the University of Texas may use race to admit students.  Both the district court and the panel relied on the controversial 2003 ruling; however, Judge Emilio M. Garza, in a concurring opinion, argued that the 2003 ruling was flawed and should be abandoned.  In June 2011, the appeals court declined to rehear the case en banc.

"Grutter was decided wrongly and must be overturned," said William Perry Pendley, MSLF president, "and equal protection restored."

In 1996, the U.S. Court of Appeals for the Fifth Circuit held that diversity was not a compelling governmental interest and that the University of Texas Law School's use of race for admission was unconstitutional.  In response, Texas enacted a law requiring all Texas students graduating in the top ten percent of their class to be admitted to the University of Texas.  As a result, the University of Texas was able to achieve the racial diversity that had existed on campus prior to the Fifth Circuit's ruling. 

          On June 23, 2003, the Supreme Court abrogated the Fifth Circuit's decision when it ruled, in Grutter v. Bollinger, that racial diversity could be a compelling interest for the University of Michigan School of Law.  Thereafter, the University of Texas began using race as a basis for granting admission. 

          Abigail Noel Fisher of Sugar Land, who graduated in the top 12 percent of her class, and Rachel Multer Michalewicz of Buda, who graduated in the top 11 percent of her class, applied for but were denied admission.  In April 2008, they sued the University and its officials in the U.S. District Court for the Western District of Texas in Austin, alleging that they were denied the right to compete for admission on an equal footing with minority students in violation of the U.S. Constitution's equal protection guarantee.  On August 17, 2009, the district court ruled in favor of the University of Texas based upon the Supreme Court's holding in Grutter.     

Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

 Fisher v. University of Texas at Austin, No. 09-50822 (5th Cir.)