Amicus Brief -- Fisher v. University of Texas

Abstract

The University of Texas at Austin’s affirmative action program, particularly its holistic review process, is based on the factually unsupported assumption that minority students from largely segregated schools are less qualified — and contribute less to educational diversity — than minority students who graduate from predominantly white high schools. This assumption is laden with the very stereotypes of African-American and Hispanic applicants that haunted the Jim Crow era, and “embraces the very ill that the Equal Protection Clause seeks to banish.” Fisher v. University of Texas, 758 F. 3d 633, 678 (7th Cir. 2014) (Garza, J., dissenting). The University’s argument simply cannot be reconciled with the core purpose of affirmative action, which the United States Supreme Court has held is to promote “values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.” Fisher v. University of Texas at Austin, 133 S. Ct. 2411, 2418 (2013). The University's affirmative action program is certainly not the way to stop discriminating on the basis of race. On these facts, to hold that the University’s program is narrowly tailored would be to render strict scrutiny “strict in theory but feeble in fact.” Id. at 2421. Ultimately, by abandoning a disproportionate emphasis on skin color, universities can finally begin to focus on what individuals have overcome, not what they cannot change.