November 02, 2015

Jenner & Block filed two amicus briefs in the high-profile affirmative action case of Fisher v. University of Texas, being heard by the US Supreme Court next month.   The Court is asked whether the University of Texas at Austin can consider race in its undergraduate admissions decisions.  The University was sued by Abigail Fisher, a white Texan who was denied admission and argued that the denial violated her 14th Amendment right to equal protection.

Filed on November 2, both briefs strongly advocate that diversity in higher education is a compelling government interest.  They are similar to others the firm filed in previous cases: the 2003 landmark Grutter v. Bollinger case that affirmed the University of Michigan’s affirmative action admissions program and the same Fisher case when it was before the Court in 2012.  In its 2013 decision in Fisher I, the Court remanded the case back to the US Court of Appeals for the Fifth Circuit, holding that the lower court had not applied the standard of strict scrutiny to the University’s race-conscious admissions policy.  In 2014, the  Fifth Circuit ruled in favor of the University.  Ms. Fisher then filed for a petition of certiorari to the Court, which was granted.

One brief was filed on behalf of 45 Fortune 100 and other leading American businesses.  It argues that the Court should reaffirm its holdings in Grutter and Fisher I “that the conscious pursuit of diversity in the admissions decisions of institutions of higher education — including diversity based upon race, religion, culture, economic background, and other factors — is a compelling state interest.”

The brief notes that the amici  are “dedicated to promoting diversity as an integral part of their business, culture, and planning.  But amici cannot reach that goal on their own.  The only means of obtaining a properly qualified group of employees is through diversity in institutions of higher education, which must be allowed to recruit and instruct the best qualified minority candidates and create an environment in which all students can meaningfully expand their horizons.”

The brief was written by Partners David W. DeBruin and Matthew S. Hellman and Associates Caroline M. DeCell and Michael E. Stewart.

Another amicus brief was filed on behalf of 13 prominent universities.  It urges the Court “to allow educational institutions to structure admissions programs that take account of race and ethnicity as single factors within a highly individualized, holistic review process.”

“Under Grutter and Fisher I, universities continue to have a compelling interest in ensuring that their student bodies reflect a robust diversity that enriches the educational experience for all students and also prepares them to be active, capable citizens and leaders in a complex and heterogeneous nation and world,” the brief says.

The brief was written by Partner Paul M. Smith and Associate Elizabeth C. Bullock.