GW to Hold Program on Major Supreme Court Affirmative Action Case

Monday, September 24, 2012
4 p.m. | reception to follow
Jack Morton Auditorium, GW School of Media and Public Affairs
(21st & H Streets NW, Washington, DC 20052)

The event is free and open to the public, please visit this link to RSVP.
Those without tickets will be admitted on a space available basis after 3:45 p.m.

Press inquiries:
Adam Dawson, GW Law,
Additional inquires:
Alan Morrison, GW Law Associate Dean for Public Interest & Public Service

The George Washington University will hold a forum to discuss the affirmative action case of Fisher v. University of Texas, which will be argued in the Supreme Court on October 10.  The Court will be examining efforts made by higher education institutions to improve diversity through race-conscious admissions policies for the first time since it considered two cases from the University of Michigan in 2003.

The preview of the case will feature four lawyers who have submitted briefs in FisherErik Jaffe, a sole practitioner, who represents the Asian American Legal Foundation, and Andrew Grossman of Baker Hostetler, who filed a brief for the Cato Institute, support Ms. Fisher's challenge to the Texas admissions program.  Joshua Civin of the NAACP Legal Defense & Education Fund, and New York Law School Professor Deborah Archer, who filed a brief for the National Black Law Students Association, will present Texas' side of the argument.  GW Law School Professor and Senior Academic Dean Christopher Bracey, who teaches constitutional law, will moderate the program, and University Provost Steven Lerman will make opening remarks, explaining what is at stake, not only for public universities like Texas, but private ones such as GW.

The Texas admission program has two parts.  The first, which is not being challenged, guarantees every student in the top 10% of his or her class in a public high school in Texas the right to attend the University of Texas, although not necessarily in the program of their choice.  Except insofar as Texas high schools are the products of significant racial segregation in housing patterns, race plays no role in this part, under which between 60-80% of the class is admitted.  The second part does take race into account as one of many factors, but there are no quotas or specific goals to achieve greater diversity for either African-Americans or Hispanics – the two groups that the program helps the most.  Ms. Fisher contends that the use of race is not narrowly confined in the manner allowed by the 2003 decision in Grutter v Bollinger, while the University contends that its "holistic" approach that takes race, as well as many factors beyond a student's SAT and GPA scores into account, is well within the Grutter framework.

Because both parties center their arguments on how the plan works in practice, the program will begin with an exploration of how the holistic part actually operates and what impact it has on the admissions of all races.  From there the discussion will examine the main arguments on each side, as well as the possible broader implications of the case, including the arguments made by opponents of the Texas plan that Grutter should be overruled or narrowed considerably. Those are distinct possibilities given the departure of Justice Sandra Day O'Connor from the majority side in Grutter and her replacement by Justice Samuel Alito who has generally been opposed to race conscious programs in education and elsewhere.

There is another interesting aspect of the case: Ms Fisher has now obtained her undergraduate degree elsewhere.  Thus, the only remedy she seeks is money damages, which have not been specified because that aspect of the case was held in abeyance until the liability issue could be determined.  Texas argued that the Court should not hear the case because it is moot, but after sitting on it for several months, the Court agreed to decide it.

There are 15 briefs supporting Ms. Fisher, 72 (including one submitted on behalf of the Obama Administration and another by George Washington and nine other universities) supporting Texas, and two supporting neither side.  They come from a wide range of organizations and individuals, and they take a variety of approaches to the constitutional question presented. Although the constitutional basis for this challenge would apply only to state schools, another federal law, known as Title VI, applies the same standards to any educational institution that accepts federal money, which means that the decision would apply, as a practical matter, to virtually every college and university in the country.  The briefs of the parties, the United States, and that submitted by each of the four lawyers on the panel, plus the brief of GW and the other nine research universities, can be accessed here:

Fisher v. University of Texas Briefs

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