Supreme Court Sets Arguments in Texas Admissions Case

By Mark Walsh — July 23, 2012 2 min read
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The U.S. Supreme Court has set oral arguments for the case challenging race-conscious admissions at the University of Texas at Austin—scheduling them to take place smack in the middle of the final weeks of the presidential campaign.

The justices will hear arguments in Fisher v. University of Texas (Case No. 11-345) on Oct. 10, the court said Monday. That will be during the second week of arguments of the court’s new term, which begins Oct. 1. It also comes between the first and second (of three) presidential debates and less than a month before Election Day.

The court will be weighing the constitutionality of a program in which the University of Texas at Austin considers race as one factor for admission after Texas students from the top 10 percent of their high school classes claim undergraduate places guaranteed by a state law. The admissions program was challenged by two white students who were denied admission to the 2008 entering class at the UT main campus in Austin. Only one of the two, Abigail Fisher, is involved in the Supreme Court appeal.

The Texas case presents one of the more high-profile issues for the court’s new term, coming after the blockbuster term in which the justices issued major rulings on the Affordable Care Act, Arizona’s immigration enforcement, and public-sector unions.

Many legal observers believe that the court’s conservatives are inclined to use the case to further restrict or prohibit the consideration of race in college admissions. Whether there are five votes for such an outcome is the big question. Justice Elena Kagan is not participating in the case, presumably because she was U.S. solicitor general when President Obama’s administration filed a brief in a federal appeals court backing the university’s consideration of race. A panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, upheld the Texas program in January 2011 under the 14th Amendment’s equal-protection clause.

Donald B. Verrilli Jr., the current solicitor general, said recently that the U.S. Department of Justice was weighing whether to file a friend-of-the-court brief in Fisher.

“The department’s got a judgment to make about whether to file in the Supreme Court and what to say,” Verrilli said at a July 11 forum at the Heritage Foundation in Washington. It would be highly unusual, though, for the solicitor general not to file a brief in such a high-profile case, especially one in which the federal government took a position at the appellate court level.

The merits briefs on behalf of Abigail Fisher, against race-based action in admissions, were filed in May. The merits brief on behalf of the University of Texas is due Aug. 6, with friend-of-the-court briefs on the university’s side due a week after that.

A version of this news article first appeared in The School Law Blog.