Briefs continue to be filed in support of Abigal Noel Fisher, the woman who has been fighting against racial preferences in college admissions at the University of Texas at Austin since she first filed suit in 2008. The U.S. Supreme Court is set to hear the case this fall.
Fisher v. University of Texas, et al. is returning to the nation’s highest court after two trips to the U.S. Court of Appeals for the Fifth Circuit.
Judicial Watch, Inc. and Allied Education Foundation filed an amici curiae (friend of the court) brief in support of Fisher. In her latest step in the fight against the use of race in deciding who gets admitted into college, Fisher filed a petition in the Supreme Court asking the court to overturn the opinion of the Fifth Circuit that provides that race and ethnicity may be the source of admission preferences in undergraduate admissions at the University of Texas (UT).
On June 29, 2015, the Supreme Court granted the petition.
The question that will be answered by the Supreme Court is whether the Fifth Circuit’s re-endorsement of UT Austin’s use of racial preferences in undergraduate admissions can be upheld under the Supreme Court’s decisions (including the Supreme Court’s decision in Fisher v. UT in 2013) when interpreting the Equal Protection Clause of the Fourteenth Amendment.
Judicial Watch, Inc. and Allied Education Foundation argue that if the Fifth Circuit decision is allowed to stand, it “will serve to increase racial polarization and resentment in this country, needlessly perpetuating a destructive focus on ‘racial’ issues and prolonging the misconception that race is a valid or legitimate concept.”
The foundations argue that, “ultimately, the only mention of race in the law should be its prohibition.” They argue that “Any divergence from this principle must be extraordinarily narrow, and for remedial purposes only.”
These groups argue the harms caused by the Fifth Circuit’s decision upholding UT’s policy include: “the further enshrinement of the intellectually impoverished concept of race into law; the perpetuation of a culture of racial and ethnic politics in American public life; and the increase of racial intolerance in American society.”
Judicial Watch describes the organization as a conservative, non-partisan educational foundation that promotes transparency, accountability and integrity in government, politics, and in the law and the judiciary. One of the purposes of the Allied Educational Foundation is to provide funds directly, or in association with similar or substantially similar organizations, for legal cases where the issues of freedom, liberty, and the rights guaranteed by the Bill of Rights and Constitution of the United States are at stake.
The foundations argue that the Fifth Circuit’s finding that the “critical mass” standard of diversity could be used, and the appellate court’s search for “holistic diversity” and “diversity within diversity” standards, are standards which are “undefined” and “unknowable.” They cite Fifth Circuit dissenting Judge Emilio M. Garza who wrote that these standards are “too imprecise to permit the requisite strict scrutiny analysis.”
The foundations conclude, “Having failed twice to justify the use of ‘race’ by employing equally vague standards like ‘critical mass’ and ‘holistic diversity,’ the Supreme Court should now reverse the Fifth Circuit’s decision.”
Breitbart News legal analyst and constitutional expert Ken Klukowski attended oral arguments in October of 2012 and wrote that Chief Justice John Roberts said at the time that Supreme Court precedent requires that “there has to be a logical end point to your use of race. What is the logical end point? When will I know that you’ve reached a critical mass?”
In 2013, the Supreme Court vacated the case and remanded it back to the Fifth Circuit stating that the lower appellate court had not applied the constitutional standard of strict scrutiny enumerated in Supreme Court precedent.
The foundations argue that the “racial classifications” being used as standards are “crude, ambiguous social constructs that rely on the arbitrary self-identification of hundreds of millions of individual Americans.” They conclude that these standards “fail the ‘narrowly tailored’ component of strict scrutiny” required by the Constitution.
In arguing that the application of confused racial concepts leads to questionable results, the foundations provide as an example, the controversy over Senator Elizabeth Warren during her 2012 campaign for Senate. At that time they write, “Based on ‘family lore’ and ‘high cheek bones,’ Ms. Warren claimed, perhaps quite sincerely, that she was 1/32nd Cherokee and therefore a Native American and a minority.” They state that in response, “many people predictably expressed doubt that classifying Senator Warren as a ‘Native American’ based on a system of racial self-identification made sense, much less served a legitimate purpose.”
The foundations also asked the Supreme Court to consider the case of Rachel Dolezal, “the NAACP Spokane Chapter president who self-identified as ‘Black’ despite apparently having only ‘White’ heritage.” They argue that “If membership in a racial class is a matter of self-identification as some government literature indicates, then there is no reason why Rachel Dolezal should not be awarded the racial plus 19 factor” during the admission decision process. They note that “race is at least partly a matter of self-identification,” and it is “also partly a matter of how others identify you.” They say, “Unfortunately, this standard is both imprecise and arbitrary.”
They urge that “Answering the question of whether Rachel Dolezal would qualify as ‘black’ under affirmative action policies … further exposes the confusion that reliance on ‘self-identification’ can produce.” They ask, “Is genuine racial self-identification sufficient, or is it merely a stand-in for some kind of honor system?”
In short they argue, invoking race and ethnicity to promote diversity improperly relies on racial and ethnic stereotyping of individuals’ viewpoints, backgrounds, and experiences.
They urge that government policies such as the policy enacted by UT, “which seeks to classify applicants by crude, inherently ambiguous, and arbitrary racial and ethnic categories to promote diversity,” can never pass constitutional scrutiny that is narrowly tailored to further a compelling government interest. They conclude that “Attempts to categorize individuals by racial and ethnic groups necessarily lead to absurd results.”
Judicial Watch and Allied Educational Foundation argue that the Fifth Circuit should be reversed because the lower appellate court’s attempt to find a narrowly tailored governmental racial program in UT’s admission system, “necessarily must rely on artful abstractions in order to evade this Court’s precedent.”
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and an associate judge in Texas. Follow her on Twitter @LanaShadwick2