Friday, September 28, 2012
Supremely Overdue Abigail Fisher, a white applicant to the University of Texas, contends that the university, in giving preference to minority applicants while rejecting her, discriminated against her unlawfully because of her color. The Supreme Court will hear the case this fall; it is likely that Fisher will prevail. The Texas 10 percent law and the special circumstances of that university present complications, of course, but the makeup of the Supreme Court today differs importantly from that of the Court that decided Grutter v. Bollinger in 2003, which authorized universities to use race in admissions in some circumstances. But how will Fisher prevail? Put another way, how much of Grutter will remain standing when this decision comes down? Might Grutter be flatly overturned? Many fervently hope for that, and I am among them. Grutter v. Bollinger is one of those decisions that were wrong on the day they were decided; it is the Plessy case of the 21st century. Fisher v. University of Texas is a fine vehicle with which the Court may put Grutter into the dustbin of history, where in any case it is very likely to go before long. In support of Fisher, 17 and one half amicus briefs have been put before the Supreme Court. Every one of them is powerfully argued and penetrating in its way. Without pretending to do full justice to each of those briefs, I here offer as fair and balanced a review of them as I am able, given the unavoidable use of categories and summaries.