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Fisher v. UT Admissions Case Returns to Lower Court; ACE Submits Brief

November 01, 2013

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​ACE and a group of 41 higher education associations yesterday submitted another brief in the ongoing diversity in admissions case, Fisher v. University of Texas at Austin (UT).

The U.S. Supreme Court in June remanded the case back to the U.S. Court of Appeals for the 5th Circuit. In a 7-1 decision, the Supreme Court said that the lower court failed to apply the correct standard of “strict scrutiny,” the most rigorous type of judicial review, when it ruled for UT in 2011.

The ACE brief focuses on a single key argument: educators’ determination of educational goals merits judicial respect. The Supreme Court has affirmed that the educational benefits that flow from a diverse student body are a compelling interest that can justify the narrowly tailored use of race in admissions. However, each institution defines diversity in its own way, consistent with its mission, and in doing so, makes an educational judgment that merits a degree of deference by the court.

The plaintiff in Fisher suggests that the university’s own judgment on what diversity means for that campus must be supplanted by a rigid numerical test. However, the higher education groups assert in the ACE brief that institutions themselves are in the best position to decide what mix of students best fits their educational goals.

The brief also notes that strict scrutiny distinguishes ends from means. The court must scrutinize the means used, but the end is attaining diversity’s benefits, which involves academic judgment and merits a degree of deference.

The case will be heard Nov. 13. 

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