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'Campus Colors': Panel on Fisher v. Univ. of TX Offers Perspective

In addition to the newsworthy speeches from Attorney General Eric Holder and former Secretary of State Hillary Clinton at this year's ABA Annual Meeting, there were also a number of fascinating panels on issues of interest to readers of this blog, including one discussion in particular that focused on this past term's most hyped, and perhaps least felt case: Fisher v. University of Texas.

Here's a brief recap of the case (full recap is here): Abigail Fisher, a white student, sued when she was denied admittance to the University of Texas. The state maintains a two-tiered admission system: Those in the "top 10 percent" of each graduating class from each Texas high school (it's now less than 10 percent) are guaranteed admission to a Texas public university. The remainder of the applicants are subject to "holistic review." One factor that is considered is race.

Despite the hopes of some (and the fears of others) that Grutter v. Bollinger and related cases would be overturned, and that affirmative-action would meet its legal demise, the Court assumed without deciding that the cases remained good law. The Court then remanded the case for further consideration after holding that the lower courts did not apply a sufficiently strict standard of scrutiny.

The Panel

The "Campus Colors" discussion panel included Patricia Olendorf, Vice President of Legal Affairs for the University of Texas at Austin, as well as Damon Hewitt of the NAACP Legal Defense Fund and longtime civil rights lawyer Bill Lann Lee of Lewis Feinberg. Lee and Hewitt brought their expertise as former and current civil rights attorneys, while Olendorf brought an insider's view of the university's unique admissions system.

A Factor of a Factor of a Factor

District Court Judge Sam Sparks, in granting summary judgment for the university, noted that race was but "a factor of a factor of a factor of a factor" of the university's "holistic review" of candidates. Hewitt expressed surprise that the case even reached the Supreme Court, as under Grutter, race can be a "plus" factor in admissions, as long as there is no racial quota system.

Lee noted that in Grutter, the number of minorities admitted year-over-year was suspiciously consistent, while the numbers admitted to UT varied greatly year-over-year. If the consistent-like-a-quota racial preferences upheld in Grutter were constitutionally permissible, then the system at UT is clearly even less suspect, he opined.

But the case did make it to the Supreme Court, and in the end, it was remanded for application of a now-clarified standard of strict scrutiny. Even with the clarity, questions remain -- questions which we'll highlight in an upcoming blog post later this week. Stay tuned.

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