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UPDATED: April 12, 2021 at 11:30 p.m.
The state of Texas filed an amicus brief Tuesday in favor of the anti-affirmative action group suing Harvard over its race-conscious admissions policies.
Students for Fair Admissions, which first filed suit against Harvard in 2014, petitioned the U.S. Supreme Court on Feb. 25 to review a pair of lower court rulings that decided in favor of Harvard’s use of race in admissions. In addition to reiterating its previous claims that Harvard’s admissions practices illegally discriminate against Asian American applicants, SFFA called on the justices to overturn Grutter v. Bollinger — a 2003 landmark case in which the Supreme Court deemed the use of race in higher education admissions constitutional.
In its filing, the Texas Attorney General’s Office put its support behind SFFA’s call for the Court to overturn Grutter.
Peter F. Lake ’81, a law professor at Stetson University, described the brief as a “full frontal assault on existing precedent.”
“They are seeking to overrule the Fisher cases – the two Fisher cases in the Supreme Court — and Grutter, Gratz,” Lake said, referring to Supreme Court cases that have upheld race-conscious admissions practices. “What that brief is aiming at is rewriting constitutional history, overruling a couple of cases that the court has said that they will stand on.”
Lake said a brief from Texas is “extremely powerful.”
“Texas has been a battleground over race-conscious admissions for decades,” Lake said. “The court’s gonna pay special attention to that.”
Texas was previously the setting for a contentious battle over affirmative action. In 2016, Abigail Fisher, a white woman who was denied acceptance to the University of Texas at Austin, sued the university for allegedly violating the Equal Protection Clause of the 14th Amendment. The case made its way to the Supreme Court, which eventually ruled in favor of the university and upheld the use of race in higher education admissions.
The amicus brief filed by the Office of Texas Attorney General Ken Paxton presents four main arguments against the 2003 Grutter case.
The brief states that the Grutter decision departs from longstanding Supreme Court rule that the Constitution outlaws racial discrimination; that Grutter cannot be applied consistently; that the court has violated the principles of Grutter; and that Grutter has not generated “reliance interests.”
The Texas Attorney General’s Office called the use of Grutter as precedent “state-imposed and state-funded race discrimination.”
In its ruling in Grutter, the Supreme Court held that the use of race in higher admissions is constitutional because it serves a “compelling interest in obtaining the educational benefits that flow from a diverse student body.”
In the brief, though, Texas argued that the Supreme Court has not explained why diversity is a compelling justification for racial discrimination in higher education but not in other contexts.
“Grutter never provided a principled reason for why diversity is sufficiently compelling in higher-education admissions but nowhere else,” the brief states. “Nothing about these claimed benefits is unique to collegiate lecture halls – yet this Court has never extended Grutter to other contexts.”
The brief argues that the only “constitutionally viable reason” to permit federally-funded programs’ use of race is “remedying past acts of de jure segregation.” In Grutter, though, the Court upheld race-conscious admissions practices due to the apparent educational benefits of a diverse student body.
“Protecting the best interest of a child is insufficient,” the brief alleges.
The Texas Attorney General’s Office also criticizes the University of Texas in the brief for using race in its admissions process.
Lisa R. Eskow ’87, a clinical professor at the University of Texas at Austin School of Law, called it unusual that Texas’s Attorney General would file a petition condemning the admissions practices of a public university within his own state.
“It’s remarkable to see a state Attorney General spending most of a brief — that it had no obligation to file — criticizing the policies of a state university it is supposed to represent,” she wrote in an email.
Michael A. Olivas, professor emeritus at the University of Houston Law Center, called Texas’ filing of a brief “predictable” and “wasteful.”
“The state of Texas should be policing its own ranks, not worrying about what private schools in Massachusetts do,” Olivas said.
The Texas Attorney General’s Office did not immediately respond to an emailed request for comment Thursday evening.
As of the deadline to file a brief in support of SFFA, Oklahoma did so in partnership with 13 other states.
Eskow wrote that she predicts other states and organizations will file briefs in favor of Harvard.
"If the Court grants the petition, I do expect to see states weighing in to support Harvard," she wrote.
After requesting a 45-day extension, Harvard has until May 17 to submit its response to SFFA’s brief.
CORRECTION: April 12, 2021
A previous version of this article misstated that Oklahoma was the only other state to file a brief in support of SFFA as of the deadline to file. In fact, Oklahoma did so in partnership with 13 other states.
—Staff writer Vivi E. Lu can be reached at firstname.lastname@example.org.
—Staff writer Dekyi T. Tsotsong can be reached at email@example.com.
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