How (Not) to Bring an Affirmative-Action Challenge

Abstract:     
A little-known fact about the biggest Supreme Court case of the Term is that it is botched beyond repair. This Essay describes a series of grave defects in Fisher v. University of Texas at Austin, the potentially momentous affirmative-action case, that should prevent the Supreme Court from reaching its merits.

The argument boils down to this: The only relief still available to Fisher is a refund of her application fees. Texas could therefore moot the case for a tiny sum. Regardless, the Eleventh Amendment and Title VI jurisprudence bar recovery of the fees. In addition, there are three defects in Fisher’s standing to claim the fees. The potential routes to resuscitating the case are fraught and unconvincing. And if, despite all that, the Court reaches the merits, the Justices will find the case a much narrower dispute than they might have expected.

Whether dismissed as improvidently granted (this Essay's recommendation) or decided on its merits, Fisher should not herald the end of affirmative action for America’s colleges and universities. If that was the aim of the Justices who voted to grant certiorari, they could not have selected a faultier vehicle for obtaining that result.

Number of Pages in PDF File: 24

Keywords: affirmative action, standing, mootness, justiciability, Title VI, Eleventh Amendment, sovereign immunity, remedies, federal jurisdiction, diversity

Accepted Paper Series