Professor Sherrilyn Ifill on Fisher v. University of Texas: Still Litigation Without Minority Representation
My colleague Sherrilyn Ifill has generously offered to share her insights on the Fisher case. Professor Ifill is a nationally recognized expert on civil rights litigation: we are lucky to have her aboard as a guest commentator. Here is Professor Ifill’s post:
Since the Bakke v. California case, higher education affirmative action cases have largely been litigated between white applicants who claim they were excluded from university admissions as a result of affirmative action, and historically white universities who have in the last 30 years sought to diversify their student bodies. Minority students, whose interests are deeply affected by the litigation in these cases, are often relegated to the sidelines.
This troubling phenomenon was first the result of the federal court’s interpretation of intervention of a right under Rule 24 of the Federal Rules of Civil Procedure. A year after the Bakke case, Professor Emma Coleman Jordan (nee Jones) wrote powerfully about the refusal of the federal trial court in that case to allow black students to intervene in her Harvard Civil Rights-Civil Liberties Law Review article Litigation Without Representation: The Need for Intervention to Affirm Affirmative Action.
Post-Grutter, the exclusion of minority students as parties at trial may be even more firmly fixed. By grounding affirmative action’s constitutionality in the First Amendment rights of universities, the Court saved affirmative action in higher education, but may also have further reinforced the redundancy of minority student participation as full litigants in these cases.
The result is that the Fisher v. University of Texas case was litigated at trial almost entirely between white applicants and a majority white public university. No lawyer arguing the case in the Supreme Court represents the interests of minority students. Certainly it’s true that civil right litigators at the NAACP Legal Defense & Educational Fund were permitted to file briefs and to present oral argument in the Court of Appeals in the Fisher case. But the real issue is the refusal of courts to allow minority students party status at trial.
The exception was the University of Michigan case, Grutter v. Bollinger, where black, Latino, Asian-American and Arab-American students were permitted to intervene at the trial phase of the case. Their robust defense of the school’s affirmative action policy included strong and direct testimony and evidence about the school’s history of discrimination against blacks. Strikingly, in contrast to the law school’s defense, the minority students challenged the University’s over-reliance on the LSAT in its admissions decisions, to the detriment of minority students, describing the LSAT as providing a “sharp, undeserved, disadvantage for minority LSAT-takers, and a sharp unearned advantage for white LSAT-takers.”
The participation of minority students as parties at trial is important because we can only expect universities like Michigan and Texas to defend their affirmative action initiatives in the furtherance of their own interests and goals. Thus, the University of Michigan was unlikely, in the Grutter case, to explore its strong reliance on applicant LSAT scores in admissions. Nor does the brief filed by Texas lay out in detail the history of discrimination at the University of Texas, and the ongoing alienation experienced by black students at the state’s flagship university, as set out in a recent article co-authored by Professor Lani Guinier.
Although some of the most compelling arguments advanced in this case are contained within the amicus briefs filed in the Fisher case, including one filed by the NAACP Legal Defense & Educational Fund, Inc. on behalf of black students, another by the Advancement Project highlighting the history of discrimination by the University of Texas, and still another filed by the family of the man who challenged and defeated segregation at UT 60 years ago, amicus status is no substitute for party status at the trial phase. All good litigators know that the ability to shape and develop a cause of action at trial, first by the allegations advanced in the complaint, then by the information sought on discovery and finally by the theory of the case advanced at trial – determines the substantive scope of the findings ultimately made in the case. Thus, party standing in these cases is particularly important.
In fact, the trial judge in Fisher permitted the League of United Latin American Citizens (LULAC) and the NAACP to submit amicus briefs at trial “in lieu of intervention,” and expressly denied permission to LULAC to submit any evidence in the case.
It’s certainly true that despite the party status of minority students in Grutter, the Supreme Court in its majority opinion appeared to ignore the students’ contribution to the case, not even mentioning the intervenors’ participation in the recitation of the procedural history of the case. Some suggest that this demonstrates that even when intervention is permitted, courts may ignore the presentation made by minority students. But the mere fact that an appellate court fails to acknowledge the contribution of intervenors, is not evidence that those intervenors did not play an important role in shaping the record to which the appellate court was bound for its review.
There’s something deeply disquieting about higher education affirmative action cases in which blacks and Latinos are virtually litigation bystanders. More than thirty years after the Bakke case, affirmative action in higher education has survived and may yet survive this latest challenge in Fisher, but the voice of racial minorities in shaping the presentation of these issues is at a low ebb.