THE BLOG
06/20/2013 11:01 am ET Updated Aug 20, 2013

The Supreme Court and Affirmative Action: Why Now?

Almost 40 years ago, just like today, the American public was anxiously waiting for the Supreme Court to hand down a landmark decision on the use of affirmative action in colleges and graduate schools. Marco Defunis, a 22-year-old native of Seattle, brought suit against the University of Washington Law School alleging that he was denied admission pursuant to an unconstitutional plan that took race into account. When his case finally reached the United States Supreme Court in 1974 (the first affirmative action case to do so), however, Defunis was in his final year of law school, and the school said he would be allowed to finish any semester he had started. Thus, even though the case had been fully briefed and even argued, the Court dismissed it under the doctrine of mootness which requires that a plaintiff's injury remain current throughout the litigation. Because it was likely (though not certain) that Defunis would graduate after the Court's decision regardless of which way the Court ruled, he would not personally benefit from the ruling, and the Court refused to hear the case.

There can be no question that the Justices at the time felt strongly about affirmative action. Just a few years later, a badly divided Court decided the landmark Bakke case. Nevertheless, the Court was correct to dismiss Defunis on mootness grounds because, as the Justices pointed out, "federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them."

Abigail Fisher is the only remaining plaintiff in Fisher v. Texas, which is this year's affirmative action case. She sued the University of Texas over its affirmative action program when she was denied admission by the school. In her complaint, she asked for the same remedy that Marco Defunis requested: a declaration that the university's affirmative action program was illegal and an injunction requiring her admission. Like Defunis, but unlike the plaintiffs in the Court's last affirmative action cases dealing with higher education, Grutter and Gratz, she did not bring a class action. She did, however, ask for her non-refundable application fee and housing deposit to be returned to her. Those fees amounted to 100 dollars.

Abigail Fisher has now graduated from Louisiana State University and has said she will never apply again to the University of Texas. Therefore, any claim she has regarding future injunctive relief simply has to be moot. Like Defunis, even if she wins the case, she still won't benefit from any Court decree. Ms. Fisher has not even appealed the court of appeals decision that her claim for an injunction is moot.

Furthermore, Ms. Fisher is not asking for damages in the amount of the difference in value between a Texas degree and a LSU degree. She has, however, asserted that she is entitled to her 100 dollars back. But, as set forth exhaustively and persuasively by SCOTUS blog's Adam Chandler, there are numerous jurisdictional problems with that claim. For these purposes, it is enough to note two (of many) fatal flaws.

First, the University of Texas and its officers are entitled to sovereign immunity under the 11th Amendment and, although prospective relief in such cases is permissible, monetary damages are barred. Second, the fees Ms. Fisher seeks were completely non-refundable. Thus, even were the Court to invalidate the Texas admissions system, she would not be entitled to those fees. Under the Court's standing doctrine, her only claim for damages is barred because her injury wasn't caused by the defendant's allegedly illegal activities. In sum, her case is barred by mootness, standing, and the 11th Amendment.

So why are we waiting on pins and needles for a landmark affirmative action case the Court clearly shouldn't hear? Linda Greenhouse, the former Supreme Court reporter for the New York Times, answered that question in her column last week. She observed that "this is a Court in a hurry." According to Greenhouse, the hurry may be to decide major affirmative action, church/state, voting rights, and other cases as fast as possible for fear that the conservative majority might not last many more terms.

What Ms. Greenhouse didn't emphasize, however, is how hypocritical it is for the Court's most conservative Justices to ignore mootness, standing, and 11th Amendment barriers to litigation that they themselves either created or have followed. For almost 25 years it has been that wing of the Court that has refused to hear important cases such as challenges to the IRS' policy of granting tax exemptions to racially discriminatory private schools, challenges to numerous governmental programs allegedly violating the Establishment Clause such as the creation by President Bush of the Office of Faith-Based Initiatives, and challenges to federal laws granting rights to the disabled for relief from state discriminatory policies. In those cases, and many others, conservative Justices created jurisdictional bars to relief for plaintiffs under the very rules that should bar Abigail Fisher's case. To ignore those barriers now, because the Justices are "in a hurry," is, well, not judicial.

Abigail Fisher is suing officials of the State of Texas in a case challenging an admissions program that she will never again trigger. The damages she seeks are barred by the 11th Amendment, and in any event, won't address the injury she claims. Let's hope that next week the Court looks back 40 years and follows the law as set forth in Defunis instead of reaching out unnecessarily to accomplish a political goal at least four of the Justices (and likely five) hold deeply -- to end affirmative action as we know it.

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