The price for defending affirmative action in undergraduate admissions at the University of Texas is going up as a lawsuit challenging racial and ethnic preferences enters a new phase.
UT previously contracted to pay the law firm that defended its program before the U.S. Supreme Court a flat fee of $977,000, plus up to $10,000 in expenses. Now that the case has been sent back to a lower court for additional proceedings, the university has agreed to raise the maximum possible charge to $1,254,500.
If the case continues into next year, which seems likely, the price would likely rise accordingly. It’s even possible that the dispute would return to the Supreme Court, further increasing costs.
UT hired Latham & Watkins LLP, with the permission of state Attorney General Greg Abbott, because it wanted an experienced hand in Supreme Court cases. The firm’s lead lawyer on the case is Gregory Garre, a former U.S. solicitor general who has argued more than three dozen cases before the high court.
The Supreme Court’s 7-1 ruling in June didn’t resolve Fisher v. the University of Texas at Austin. Instead, the ruling sent the case back to the 5th U.S. Circuit Court of Appeals for an exhaustive review of whether UT needs to consider race and ethnicity to achieve a diverse student body.
The appeals court upheld the university’s program in 2011, but the Supreme Court said that review fell short of the “strict scrutiny” required. The same three-judge panel that heard the case then will preside at oral arguments in Austin on Nov. 13 involving lawyers for UT and Abigail Fisher, a white woman challenging the use of affirmative action.
Both sides must file briefs spelling out their positions in advance, with the first, by Fisher’s lawyers, due Friday. Besides directing the lawyers to address “any issue thought relevant,” the court instructed them to examine seven questions, including whether the case should be sent to a lower court for additional proceedings, whether the university is due any deference in its decision that a “critical mass” of minority students hasn’t been achieved and whether any workable alternatives to the use of race were available to UT but not deployed.
“It sounds like they’re really kind of groping here for guidance from the parties,” said Steven Schwinn, an associate professor at the John Marshall Law School in Chicago who wrote a primer of sorts about the Supreme Court case for the American Bar Association.
However the three-judge panel rules, the losing side is likely to ask for a review by the full 5th Circuit. In any event, the losing side is almost certain to ask the Supreme Court to take the case again, Schwinn said.
Fisher appears to have an edge over UT because the Supreme Court’s ruling, while leaving open the possibility of affirmative action, requires a more detailed review of such programs by the courts, Schwinn said. Read against that background, the 5th Circuit’s questions — especially the one about alternatives to the use of race — seem to tilt in favor of Fisher, he said.
What’s more, because the Supreme Court “vacated” the 5th Circuit’s earlier ruling, the high court’s rules required UT to pay Fisher’s lawyers $21,865 to cover the cost of printing a transcript, briefs and other materials.
If the courts ultimately rule against UT’s use of affirmative action, the university could be on the hook for far more in legal fees for Fisher’s lawyers, with the courts having the final say on how much to award.
“The costs are yet to be determined, but the amounts UT has paid Latham & Watkins are representative of what Abigail Fisher’s costs will ultimately be,” said Edward Blum, director of the nonprofit Project on Fair Representation, which has helped underwrite her legal expenses. She is represented by Washington-based Wiley Rein LLP.
The case dates to 2008, when Fisher and another white student sued after they were denied entry to the UT freshman class. The other student later withdrew from the case.
Fisher contends that, but for her race, she would have been accepted. The university says that her academic credentials weren’t strong enough and that her race made no difference.
Most UT freshmen enroll under a state law that grants automatic admission based on high school class rank. UT considers race and ethnicity, among numerous other factors, in deciding on admission of other students. Fisher didn’t qualify for automatic admission. She graduated from Louisiana State University last year and works as a financial analyst in Austin.