In a reprise of a case that the high court first addressed in 2013, attorneys for Abigail Fisher — a white student denied admission to the University of Texas at Austin allegedly because of her race — filed a petition for review on Tuesday from a decision by the 5th U.S. Circuit Court of Appeals affirming the dismissal of her case.
In a 7-1 decision in the first go-around by Fisher, the Supreme Court sent the case back to the Fifth Circuit for a reconsideration of the university’s affirmative action policy under a strict scrutiny standard.
In the petition filed this week, Fisher’s attorneys argue that the appeals court failed to adequately give the university’s admissions policies strict scrutiny and asked the court to take the case, “strike down UT’s unjustified use of race, and once again make clear that the Equal Protection Clause does not permit the use of racial preferences in admissions decisions where, as here, they are neither narrowly tailored nor necessary to meet a compelling, otherwise unsatisfied, educational interest.”
How the high court proceeds next in Fisher will have some bearing on the case filed in federal court here against UNC-Chapel Hill in November, alleging similar flaws in the university’s admission policies. (A similar lawsuit was filed in Massachusetts federal court against Harvard by the same group on the same day.)
As SCOTUSblog’s Lyle Denniston described the Harvard and UNC lawsuits:
The basic thrust of the new lawsuits is that Harvard and the flagship university in North Carolina are using admissions programs that cannot satisfy the tough constitutional test for judging race-based policy — “strict scrutiny.” But their broader theme is that the Supreme Court’s affirmative action efforts beginning with the Bakke ruling have failed to end racial bias in admissions programs, so it is now time to overrule Bakke and at least one other decision.
In the lawsuits, filed under the name “Students for Fair Admissions Inc.,” attorneys for plaintiffs — selected after a nationwide search by backers of Project for Fair Representation — argue that diversity at the schools can be achieved by race-neutral alternatives and that public colleges and others receiving federal funds should be ordered to end the use of race in admissions altogether.
The same attorneys representing Fisher at the Supreme Court are representing the students in the UNC case here, which is pending in Winston-Salem and is now assigned to newly-commissioned U.S. District Loretta Copeland Biggs, who took her seat this past December.