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.

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18 Responses

  1. Orin Kerr says:

    What is the race of the University of Texas?

  2. Shag from Brookline says:

    Orin asks a truly simple question.

  3. Danielle Citron says:

    Orin and Shag, The answer is obvious and I take the question to be disingenuous. The majority of the students at UT are white. To the extent that the university speaks for itself, it importantly speaks for its student body. I would also bet that the majority of its faculty and administration is white as well. DC

  4. sherrilyn says:

    Orin: I’m not sure if your concern is grammatical (attributing a race to a school is a weird kind of personification). We certainly recognize HBCUs. Howard has white students and faculty, but would be regarded as an HBCU. I’m happy to call UT an historically white university, as that is certainly more appropriate. I receive that edit.
    Assuming your question is more substantive, I would commend to you this short piece below written by Professor Lani Guinier and Penda Hair of the Advancement Project.


  5. Shag from Brookline says:

    Orin’s question is not only truly simple but disingenuous as well.

  6. Joe says:

    Interesting. The diversity rationale raises the possibility that the “client” here is everyone, since all benefit from that. Also, the party is “University of Texas,” which does have its “own interests and goals.” I can imagine various lawsuits involving interests of students at an university where the university is being sued where the institutional goals would run counter to the specific students at stake.

    The discussion is challenging though. I just wonder how far one would take it.

  7. Orin Kerr says:

    The question is not disingenuous. If I understand the post, it argues that blacks and Latinos are bystanders because they are not parties to the litigation. But a lot of public interest litigation involves institutions, and I’m curious how we know what the race of the institution is in order to tell if the post’s claim is true.

    Danielle says that in the case of a university, we look to the majority of the student body at that university today and assume that institutions represent the race of the majority of the student body, which she claim is white. But as I read the stats on the incoming freshman at UT Austin, it reports that only 48% of the class is white, 23% is Hispanic, 17% is Asian, 3% is multi-racial, and 4% is “Foreign” (whatever that means). Maybe I’m misreading the numbers, and please correct me if I am. But it seems like slightly under or somewhere around half the student body at UT Austin is white. So I’m curious how we know the race of an institution with such a diverse student body. Stats from here:

    In her comment, Sherrilyn suggests we look to history of the school. But I’m not sure why history is the relevant criteria. Harvard is historically all-male, but I would think that today’s Harvard would be recognized as not just representing the interests of men.

  8. Jason Mazzone says:

    This is an interesting post but could you perhaps clarify what exactly is missing? Are there arguments that could have been made but have not been made (by the parties, by the many amici)– and if so what are those arguments? Or is the point that the simple absence, if absence there was, of “minority” (see Orin’s post on numbers)in the litigation itself a defect? If that’s the claim, what is the defect exactly? It seems to me there is a parallel here between your point and questions about the value of affirmative action: is the mere presence of “minority” students a desirable goal in itself or is their presence tied to specific contributions those students could make?

  9. Shag from Brookline says:

    What are the stats for sophomores, juniors, seniors? Should the determination be made solely by the freshman class or UT overall? The history of UT on minorities discrimination has only recently changed. Harvard ceased being all male quite a long time ago. With UT’s recent history, it is only starting, finally, to catch up on diversity.

  10. sherrilyn says:

    The brief filed by the Advancement Project on which the Guinier/Hair piece is based is not just about history Orin, but about ongoing race issues for minority students at UT. And Orin, now you are being disingenuous. You are not, “curious” about how UT can be described as white. You think, I presume, that it should not be described as a white school and you find the “historically white” moniker unhelpful. The point of the piece I referenced is that UT’s history as a white school, with an actively hostile environment to minority students is quite relevant to understanding its current affirmative action efforts, and that ongoing racial tension in that environment also helps explain UT’s affrimative action efforts (especially in attempting to achieve a critical mass of minority students). So we disagree. No problem. But I don’t think I can satisfy what you describe as your “curiosity” on this point.
    Jason, I described how in Grutter, the student-intervenors brought a perspective the University of Michigan was unlikely to pursue — the University’s need for affirmative action measures in light of its over-reliance on LSAT scores. This point was taken up, ironically, by Clarence Thomas in his dissent.
    Since LULAC and the NAACP were not allowed to introduce evidence in Fisher, we do not know “exactly what is missing.” The point of intervention is to protect an interest that is not represented in the action, but that will be compromised by the litigation. It’s only when the intervenors have an opportunity to participate that we learn “exactly what’s missing.”

  11. Orin Kerr says:

    Sherrilyn, again, I’m not being disingenuous. I really don’t know what race to give to UT. Like Jason, I am just trying to understand your argument and see your perspective. Anyway, your explanation gives me some idea of where you are coming from; thanks for giving it.

  12. A.J. Sutter says:

    Orin: Harvard University hasn’t been all-male for over a century, and Harvard College hasn’t been since 1963, 1972, 1977 or 1999, depending on what criterion you use (issuance of joint diplomas, women in Harvard Yard, merger agreement, complete merger; there should also be some date between 1963 and 1972 when women started living — “officially,” as Derek Bok liked to emphasize back then — in the River Houses).

    A question for Sherrilyn: I admit I’m not so knowledgeable about this case or about the line of cases, but I have a different question about the premise of the post: UT is being sued because it’s implemented an affirmative action program that benefits minority students. It obviously thinks such a program is worthwhile, and it hasn’t compromised on that belief, since the case has gone up to the Court without being settled. Doesn’t that suggest that UT and its lawyers are taking a pretty stand-up role in representing minority student interests, despite the university’s having a majority white enrollment?

  13. Brett Bellmore says:

    “UT is being sued because it’s implemented an affirmative action program that benefits minority students.”

    I think this is a pejorative description of the situation, embodying a common assumption of affirmative action supporters: That opposition to affirmative action is motivated by hostility to minorities.

    In reality, UT is being sued because it’s implemented an affirmative action program which harms everybody else.

  14. Admin Guy says:

    Why does it matter what Orin’s motive is in asking his question? It appears that Sherrilyn and Danielle are annoyed that Orin’s question may undermine their argument. But instead of addressing it in any depth, they say that he has an improper motive. But if that is so, what are their motives in discussing their topic? To get to the truth or to further some agenda? See how easily this game can be played?

    We should instead not assume the worst in people and question their motives. We should instead address their arguments. If their argument is bad, explain why. The academy, of all places, should be the appropriate place to have good-faith debates. And all professors should be seeking to be better role models for their students.

  15. Danielle Citron says:

    The question did not seem like a question, when I read it, so much as to suggest the point of UT being historically a white school sort of silly. I did not mean to shut down debate or to say that Orin had a bad motive. I regret it, if that is what Admin Guy takes it to mean. In any event, engaging in the substance is where we have taken it–UT has historically had lots of problems with white students demeaning black students, see the coverage in the HuffPost about bleach balloons thrown from apartment buildings at black students at UT, and Sherrilyn’s point is that hearing from black students as interventors under Rule 24 is important because they represent a unique viewpoint that the university does not (even though as AJ rightly says the university supports affirmative action). Affirmative action plans address historical discrimination and part of that story is indeed how black students have historically been treated on campus both in admission and in student life. So to answer Jason’s point, that seems a unique perspective that the university itself would not meaningfully represent, as Rule 24(b) suggests. Funny, I wrote my comment because I felt it was belittling but perhaps I did just what I felt to Orin. I regret that.

  16. Joe says:

    “harms everybody else”

    I was under the impression opponents argue that the program harms “everybody,” even the alleged beneficiaries. But, the question can be framed in different ways. And, “harms everybody else” is an argument, not (as it seems to have been expressed) a given.

  17. Ken Rhodes says:

    As a non-lawyer, but one who worries about such things, it seems to me that normal operation of the courts in adjudicating disputes is limited to the elements of the disputes and the parties to the disputes.

    If I apply for a job at a large institutional employer who is obligated under Equal Opportunity laws, and I perceive that I was denied a job which was given to another applicant of lesser qualifications, I sue the employer, not the guy who got the job.

    The employer is the sole defendant, and the guy who got the job is not a party in the trying of my suit. The attorneys for the defendant may call witnesses who have substantive knowledge of the particulars of the case, but that doesn’t make those witnesses parties to the case. The attorney for the defendant may also call expert witnesses who have substantive knowledge of the history of employment practices at that employer, or in the community, or who have expert knowledge of the issues involved in the case. But they, too, are witnesses, not parties in the suit.

    In the subject case it seems to me there are only two parties–the plaintiff, who did not get into UT, and the defendant, UT, who did not admit the plaintiff. I simply don’t see how any bystanders, no matter how much they feel they represent “a unique viewpoint,” are parties to this case.

  18. sherrilyn says:

    I had no idea this discussion was still going on. A.J., you ask Jason’s question. What’s missing when U.T. is clearly defending its affirmative action program? In fact, the briefs and oral argument are quite illuminating in this regard. The students might have been prepared to more robustly argue the standing issue, which is a quite potentially rich one in Fisher (the plaintiff has already graduated and has stipulated that she would not attend UT, if admitted, and the evidence in the record is that she would not have been admitted to UT no matter what her race in the fall of 2008). There are real injury in fact and redressibility arguments that could have been more powerfully made. UT devoted very little of its briefing to that issue.
    But more importantly, UT relied on a survey it conducted for evidence of feelings of isolation among minority students. This evidence goes directly to the argument that a critical mass of black and Latino students are needed to further the University’s desire for a robust, diverse educational environment in the classroom. Both Justice Roberts and Scalia appeared to look askance at this survey. It certainly seems that black and Latino students could have more effectively developed this at trial, providing testimony that would have supported the findings in the study. In fact, if one reads the amicus brief filed by the Black Student Alliance in the Supreme Court, it recounts the particular isolation experienced by black students, the enduring reality of racial stereotype, and recent, disturbing racial incidents on campus at UT. All of this could have been more powerfully developed through evidence and testimony at trial.
    Certainly UT has done a “stand-up” job. One needn’t demonize UT to recognize that the interests of the University are not identical to those of minority students or to acknowledge that the case may suffer from the failure of the trial court to allow the intervention of minority students.