Abigail Fisher renews push against affirmative action before the Fifth Circuit

HOUSTON (CN) — An anti-affirmative action group led by activist Abigail Fisher asked the Fifth Circuit Court of Appeals on Tuesday to revive its lawsuit over the University of Texas’ consideration of race in admissions.

Fisher, now in her 30s, sued the University of Texas at Austin in 2008 after it denied her admission. Her 3.59 GPA as a senior put her just below the cut under a state law requiring UT to accept students who graduate in the top 10% of their high school classes.

Fisher argued her extracurricular activities — she was a cellist and co-president of her high school orchestra, involved in math competitions and volunteered with Habitat for Humanity — combined with her academic record, would have qualified her if UT had not used race as a factor in its holistic approach to selecting the remainder of its 2008 freshman class in alleged violation of the 14th Amendment’s equal protection clause.

She had a wealthy and committed supporter. Edward Blum, a 1973 UT graduate and family friend of Fisher’s parents, was the self-styled “architect” of her litigation. He handpicked her to take on UT and paid for her legal fees through an organization called the Project on Fair Representation, which he serves as president.

Still, in 2016 the Supreme Court ruled 4-3 to affirm lower courts’ dismissal of Fisher’s claims, holding UT’s use of racial classifications and admissions preferences, as applied in 2008, satisfied strict scrutiny because it was sufficiently tailored to meet a compelling interest: student-body diversity.

Despite the loss, Fisher had already established herself as an advocate for other students challenging college admissions’ regimes.

Fisher, her father Richard Fisher and Blum formed Students for Fair Admissions, a Virginia nonprofit, in 2014. Fisher is the group’s secretary and an officer alongside Blum and her dad.

The group has two cases that will soon be aired before the U.S. Supreme Court, one on behalf of Asian American students who claim Harvard’s admissions policies discriminated against them, the other for white and Asian students denied admission by the University of North Carolina.

A similar lawsuit the organization filed against Yale University is stayed pending the high court’s decision in the Harvard and UNC litigation.

And still aggrieved by Fisher’s Supreme Court loss, Students for Fair Admissions is determined to effectuate change in UT’s admissions process.

It twice sued the university in Texas state courts before suing it, and several of its administrators, again in July 2020 in Austin federal court on behalf of two of its white members who were denied admission to UT. They say they will transfer to the school if it stops discriminating against them on the basis of their race.

Last year, U.S. District Judge Robert Pitman, an Obama appointee, granted UT summary judgment and dismissed the case. He found Fisher’s 2008 lawsuit barred Students for Fair Admissions’ suit because she and Blum exert control over the litigation as directors of the group and the two cases involved the same claim or cause of action.

The nonprofit’s counsel Michael Connolly, of Consovoy McCarthy in Arlington, Virginia, found a receptive audience at a hearing before a three-judge panel of the Fifth Circuit on Tuesday at the Houston federal courthouse.

Connolly argued Pitman’s finding that Students for Fair Admissions’ lawsuit is merely a rehash of Fisher’s 2008 suit was completely off-base.

One of the group’s main contentions, Connolly said, is based on intervening developments. It claims UT engages in patently unconstitutional racial balancing, as evidenced by the fact that from 2009 through 2018 Black students made up 5% of those it admitted for its freshman classes in all except for one of those years.

Students for Fair Admissions has also seized on the university’s public pronouncements about its affirmative action policies.

“Until 2017, UT publicly reported race was a factor they only considered,” Connolly said. “In 2017, UT publicly reported race is a factor that is very important. That’s according to UT’s own documents. And again, if UT has changed its use of race, it is now increasing its use of race, that’s another change in facts that … didn’t exist before 2008.”

U.S. Circuit Judge Kyle Duncan, a Trump appointee, made clear he does not understand Pitman’s reasoning in dismissing the case.

“I just don’t get it. Let’s say Mr. Blum and Ms. Fisher did exactly what you just said back in the Fisher case, which they’re perfectly legally entitled to do. And they lost. OK. So they’re disappointed and they say, ‘All right, we’re going to form another organization to help other people sue. It’s a membership organization, and we’re going to control it.’ … What’s wrong? What’s to prevent them from doing that?” Duncan asked.

Meanwhile, UT's attorney Matthew Powers attacked Students for Fair Admissions’ standing.

He argued the group cannot establish associational standing through its members because in its Virginia articles of incorporation, it chose to designate itself as having no members, though its bylaws do include its membership policies.

But Judge Duncan and U.S. Circuit Judge Edith Jones, a Reagan appointee, were skeptical of UT’s lack-of-standing argument because courts in the District of Massachusetts, District of Connecticut, Middle District of North Carolina and the First Circuit let Students for Fair Admissions’ cases against Harvard, Yale and University of North Carolina proceed.

David Hinojosa, of the Mexican American Legal Defense and Educational Fund, represents three groups who intervened to defend UT’s admissions policies: the Black Student Alliance, the Texas NAACP and the Texas Orange Jackets.

He tried to undermine the standing of Students for Fair Admissions’ two members through whom it is bringing the challenge.

Hinojosa argued they cannot prove they would benefit from UT ending its alleged practice of using race as a predominant admissions factor because they have conceded in court filings that students of color admitted through UT’s holistic approach, and not based solely on their grades, would have been admitted anyway if race had not been considered.

“So they’re claiming UT is using race as a predominant factor, yet they readily admit that race isn’t really playing much of a factor at all. So if you enjoin that practice how does it benefit the plaintiffs?" Hinojosa asked the panel, which was rounded out by U.S. Circuit Judge Carolyn Dineen King, a Carter appointee.

The judges took the case under advisement and did not say when they would issue a ruling. But they acknowledged if they revive and remand the case, it will likely be stayed until the Supreme Court rules in the Harvard and University of North Carolina lawsuits.

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