Judicial Watch • Judicial Watch, Allied Educational Foundation File Amicus Brief Supporting Fisher Challenge to Race-Based University Admissions Policies

Judicial Watch, Allied Educational Foundation File Amicus Brief Supporting Fisher Challenge to Race-Based University Admissions Policies

Judicial Watch, Allied Educational Foundation File Amicus Brief Supporting Fisher Challenge to Race-Based University Admissions Policies

AUGUST 25, 2014

Brief argues race-based admissions could “prolong the misconception that a person’s ‘race’ is useful distinction for judging who a person is and what they are entitled to.”

(Washington, DC) – Judicial Watch announced today that on August 5, 2014, it joined with the Allied Educational Foundation (AEF) in filing an amicus curiae brief with the U.S. Court of Appeals for the Fifth Circuit in support of Abigail Noel Fisher’s appeal for an en banc hearing to review the court’s July 15 ruling in favor of the University of Texas’ (UT) race-based admission policy (Abigail Noel Fisher v. University of Texas at Austin, et al. (No. 09-50822))

By way of background, Fisher was denied admission to UT in 2008. She filed suit, alleging that the university had discriminated against her and co-plaintiff Rachel Multer Michalewicz because of their race.

In January 2011, the Fifth Circuit Court ruled in favor of UT, prompting Fisher to appeal the decision to the U.S. Supreme Court. In June 2013, the Supreme Court ruled that the Fifth Circuit had failed to apply “strict scrutiny” to the university’s race-based admissions policy, remanding the case to the Circuit Court, which on July 15, 2014, again ruled in favor of UT Generally speaking, the race-based government policy might survive court review under this “strict scrutiny” standard if the policy serves a “compelling government interest.”  Judicial Watch filed an amicus brief in support of Fisher in advance of this Supreme Court victory (No. 11-345).

But the Fifth Circuit has not followed the Supreme Court’s instruction.  In their amicus brief supporting Fisher’s petition for an en banc hearing, Judicial Watch and AEF contend that the UT admission policy violates the Equal Protection clause of the Fourteenth Amendment. If the Fifth Circuit Court decision is allowed to stand, the Judicial Watch/AEF brief argues, it could “prolong the misconception that a person’s ‘race’ is useful distinction for judging who a person is and what they are entitled to.”

Arguing that the UT admissions policy violates the Supreme Court’s “strict scrutiny” standard, Judicial Watch and AEF contend, “Because race is, in essence, a social construct, it, [the UT race-based admissions policy] is inherently ambiguous. This ambiguity is compounded by the ambiguity of allowing applicants to self-select their race in order to gain a ‘plus’ factor towards admission.” Specifically, Judicial Watch and AEF argue:

  • Students must self-identify their race, but it remains unclear what makes one applicant a “Hispanic or Latino,” an “American Indian or Alaska Native,” an “Asian,” “Black or African American,” a “Native Hawaiian or Pacific Islander,” or simply “White.” UT does not specify whether an applicant must be a “full-blooded” member of his or her self-identified race or ethnic group, or whether 1/2, 1/4, 1/8, 1/16, or 1/32 is sufficient to be granted or denied the “plus” factor.
  • Also undefined by UT’s policy is whether the terms “Hispanic” and “Latino” refer to persons of full or partial Spanish ancestry only, or also to persons of other European ancestry such as the Germans and Italians and persons of Jewish background who immigrated to predominantly Spanish speaking countries in Central and South America and the Caribbean before immigrating to the United States. It also is unclear whether Question 7’s reference to South America “or other Spanish culture or origin” includes Portuguese-speaking Brazil.
  • With respect to the “American Indian or Alaska Native” racial category, the Native Americans Rights Fund acknowledges that ‘[t]here exists no universally accepted rule for establishing a person’s identity as an Indian. UT’s policy is completely silent as to who is entitled to a ‘plus factor for being an ‘American Indian or Alaska Native.’
  • UT makes no effort whatsoever to define the term ‘Asian,’ which just as commonly refers to the four billion human beings who inhabit the largest and most populous continent on Earth as it does to a single “race” of people … It is unclear whether UT’s use of the term includes applicants who are or whose ancestors were of full or partial Near or Middle Eastern origin, including persons of full or partial Arab, Armenian, Azerbaijani, Georgian, Kurdish, Persian, or Turkish descent, or whether such applicants are to be considered ‘White.’
  • UT makes no effort to define what it means by its use of the term ‘Black or African American’ in its admissions policy… If two applicants are of both European and African ancestry, but one applicant self-identifies as ‘Black’ and the other applicant self-identifies as both ‘Black’ and ‘White,’ do both applicants receive the same ‘plus’ factor?

“The admissions policies of the University of Texas at Austin are at odds with the Constitution, subject to abuse, and promote crackpot racial theories that have no basis in science,” said Judicial Watch President Tom Fitton. “By repeatedly refusing to uphold the basic right to equal protection under the law, the Fifth Circuit Court is attempting to turn pseudo-science into settled law, despite the Supreme Court’s ruling to the contrary.  The University of Texas should focus on educating its students rather than running a divisive and unlawful racial spoils program.”

Judicial Watch’s partner in the amicus filing, the Allied Educational Foundation, is a charitable and educational foundation dedicated to improving the quality of life through education.

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