National Press Club

Newsmaker: Affirmative Action under Supreme Court scrutiny again

October 27, 2015 | By Bill McCloskey |

Attorney Andrew Grossman with NPC member Tony Gallo

Attorney Andrew Grossman with NPC member Tony Gallo

The U.S. Supreme Court on Dec. 9 will take another look at the Fisher v. University of Texas affirmative action case that has ping-ponged between the high court and the 5th U.S. Circuit Court of Appeals since 2012.

That the Supreme Court agreed to hear the case this time "is bad news for the University of Texas," said attorney Andrew Grossman of BakerHostetler, who represents the Cato Institute and who has filed a Supreme Court brief on UT applicant Abigail Fisher's side in the case.

During a Newsmaker news conference at the National Press Club Tuesday, he reasoned that the Supreme Court only "picks cases that will provide broad guidance to public officials."

At issue is the school's policy which, after granting automatic admission to the top 10% of Texas high school graduates, takes race into account in a "holistic review program" of other applicants. About 80% of the incoming class seats are taken by the top 10% high schoolers.

The school denied Fisher admission in 2008. Fisher sued to challenge the school's use of race in its selection process. Appeals Court judges sided with the university. The Supreme Court overturned that decision and sent it back to the 5th Circuit telling it to make the school justify its use of race under the "strict scrutiny" standard. The University presented a case, the 5th Circuit again agreed with the university, and Fisher, who has already graduated from another college, again sought review in Washington.

Grossman said he believe the school cannot satisfactorily explain how its "somewhat of a black box" so-called "holistic review program," which looks at grades, "personal achievements" and race, works. At issue is the good faith of the process the school uses, he said. Each applicant is holistically reviewed by one assessor and there is no peer review of that assessment, Grossman said, so it is hard to tell if applicants are being treated fairly.

In oral arguments, Grossman suggested, the University of Texas needs to prove the "necessity of its program, as well as the precise contours of the program."

Grossman advised reporters covering the December arguments to focus on the questions by Justice Anthony Kennedy who in past affirmative action cases has displayed "the most nuanced view" on the subject.