Fisher v Texas Oral Arguments: The “Standing” Question

This is the first in a series of posts I’ll be writing about the oral arguments in Fisher v. Texas, the campus admissions affirmative action case argued in the Supreme Court last week. Series intro here.

Bert Rein, attorney for rejected white University of Texas applicant Abigail Fisher, got just one sentence into his presentation before he was interrupted for the first time. As he was preparing to make his case for the unconstitutionality of Texas’s admissions policies, Justice Ruth Bader Ginsberg jumped in to ask him why he was even there in the first place.

As I noted last week, you can’t just sue somebody because you feel like it. You have to show that you’ve been harmed, and you have to show that the harm is one that the government can remedy. It’s not clear that Abigail Fisher’s case clears either of those hurdles.

First, there’s the question of harm. According to the state of Texas, affirmative action had nothing to do with Fisher’s rejection. Her application, and in particular her test scores, just weren’t good enough for UT. (Fisher came within a smidge of automatic admission to the university under a state law guaranteeing a seat to every student who graduates in the top 10% of their class, but her SATs were much less impressive than her grades.)

So if affirmative action isn’t the reason she was rejected, what’s the basis for her suit? Well, it turns out that the question of whether she would have gotten in without AA wasn’t litigated at trial — Texas says she wouldn’t have, and it’s hard to imagine that they’re wrong, but Fisher’s lawyers say they should have a chance to contest that claim before the government uses it against them.

There’s more, too. Fisher’s camp says that the denial of equal treatment on the basis of race represents a “constitutional injury,” whether or not it would have been decisive in this case. In other words, if she applied to the university, and they held her race against her, that’s harm, whether or not her race denied her the seat.

On the question of damages, things aren’t any clearer. Fisher isn’t asking to be admitted to UT, because after she was rejected she accepted admission to LSU, enrolled there, and completed an undergraduate degree. She’s a college graduate now, and doesn’t want to go to UT anymore. As far as monetary damages go, her only stated loss is the school’s application fee and a housing deposit, which together amount to only $100.

And Texas says she’s not entitled to that, even if she wins the case. She would have paid those fees whatever the admissions process, and they wouldn’t have been refunded if she’d enrolled, so she doesn’t have a basis for demanding them back.

You’d think this stuff would have been addressed before the case got to the Supreme Court, but it wasn’t. And you’d think the questions involved would be straightforward, but they’re not … as this exchange between Chief Justice Roberts and the attorney for the state of Texas makes clear:

ROBERTS: What about our Jacksonville case that said it is an injury to be forced to be part of a process in which there is race-conscious evaluation?

GARRE: Texas v. Lesage says that  that injury is not sufficient in a backward-looking case like this, where you only have monetary damages. In Jacksonville and all the other cases, they involved forward-looking claims for declaratory injunctive release where people who were going to go out and get contracts again.

ROBERTS: I thought your friend — your friend told us that these remedial issues and damages issues had been segregated out of the process and are still available for remand.