Case to be Reheard by 5th Circuit on Order of the U.S. Supreme Court
Washington, D.C. - The Project 21 black leadership network has submitted an amicus brief in the ongoing affirmative action case of Abigail Noel Fisher v. University of Texas at Austin.
The case will be reheard November 13 by the U.S. Court of Appeals for the 5th Circuit after the U.S. Supreme Court, in a June 24 7-1 decision, remanded the case back to the 5th Circuit, saying the lower court had improperly failed to use a "strict scrutiny" standard when it ruled for the University of Texas in 2011.
The "strict scrutiny" standard is the toughest to meet. Under it, the University of Texas must prove to the 5th Circuit that its race-conscious admissions policy is justified by a compelling state interest, is narrowly tailored specifically to meet that interest, and is the least-restrictive way the state can meet its goal.
Horace Cooper, co-chairman of Project 21 and a graduate of UT Austin, said: "This isn't business as usual. University of Texas at Austin needs to adopt a race-neutral admissions program or come up with a really good rationale for using preferences. And arguing that other schools are doing it isn't a good answer. Race-neutral admissions worked at UT, and they have the added benefit of being constitutional and not dividing people along racial lines."
The amicus brief, written by the Pacific Legal Foundation and submitted October 11 on behalf of the Pacific Legal Foundation, the Project 21 black leadership network, the American Civil Rights Institute, the Center for Equal Opportunity, the Individual Rights Foundation, the National Association of Scholars and the Reason Foundation, reminds the lower court that the "strict scrutiny" orders by the Supreme Court mean the school "must give extraordinary justification for needing race-based means" to ensure student body diversity.
The brief argues that "[g]iven the success of several states in achieving diversity through race-neutral means -- UT's own success in implementing its percentage plan -- the University cannot show that its race-based program is narrowly tailored."
"The Court was clear that race-based preferences are not allowed without an exceptional justification," added Project 21's Cooper. "In the 21st century, looking for that justification is a fool's errand. Frankly, UT ought to be leading by example -- showing how a top-tier school can achieve diversity and have high admissions standards without resorting to racial preferences."
The brief notes:
The experiences of universities across the nation demonstrate that UT could pursue its goals without resorting to race-conscious admissions preferences. Public universities have implemented a variety of race-neutral alternatives, including increased recruitment at underrepresented schools, expanded transfer programs, new financial aid opportunities and preferences for first-generation attendees. The schools' experiences show that race-neutral alternatives are workable... For the foregoing reasons, UT's race-conscious admissions policy cannot meet strict scrutiny under an equal protection analysis.
UT Austin previously employed a race-neutral admissions process, which relied in part upon a statewide plan guaranteeing admission to the top ten percent of high school graduating classes. When the school changed its policies, it had classes over 21 percent black in composition. In her lawsuit, plaintiff Abigail Fisher alleges the policy change denied her admission over minority applicants who were less qualified.
The brief further argues:
[G]iven that UT could and did achieve higher numbers of minority enrollment without using race as a factor, it must give an extraordinary justification for needing race-based means to increase that percentage... Not only can UT achieve a critical mass using race-neutral means, those race-neutral means do not require the University to sacrifice the academic qualification of those admitted.
"The Supreme Court has applied the strict scrutiny standard in several affirmative action decisions and prescribed a very high bar for the future use of race quotas. However, in their June decision, they found the University of Texas at Austin did not meet the strict scrutiny standard. The justices sent the previous ruling back to the lower court for them to correctly apply the standard as it has been intended," said Project 21 Co-ChairmanCherylyn Harley LeBon, a former senior counsel with the U.S. Senate Judiciary Committee. "Now it's time for the 5th Circuit to take that constructive criticism to heart and overturn the school's unfair race-based admissions policy."
In 2012-13, Project 21 has been involved in the race preferences cases of Schuette v. Coalition to Defend Affirmative Action and Fisher v. University of Texas at Austin and the voting rights case of Shelby County, Alabama v. Holder that were argued before the U.S. Supreme Court. It is also currently involved in the disparate impact case of EEOC v. Kaplanthat is currently under consideration by the U.S. Court of Appeals for the 6th Circuit.
Project 21 legal experts and other members have discussed these cases in media interviews this year on MSNBC, Fox News Channel, HBO, Glenn Beck's Blaze TV, the nationally-syndicated Jim Bohannon radio show, Florida Public Radio, the Christian Science Monitor and Reuters.
So far in 2013, Project 21 members, representing Project 21, have generated almost 1,500 known media interviews, op-ed commentaries and citations.
Project 21, a leading voice of black conservatives for over two decades, is sponsored by the National Center for Public Policy Research, a conservative, free-market, non-profit think-tank established in 1982.
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