On June 29, 2009, the·Supreme Court ruled that city officials in New Haven, Connecticut, violated the rights of white firefighters when they discarded the results of a promotions test because minority firefighters performed poorly on the test. “No individual should face workplace discrimination based on race,” Justice Anthony Kennedy wrote in his majority opinion.

250px-SCOTUSbuilding_1st_Street_SEBut what about students applying to a university? Can they lawfully face discrimination based on race? The University of Texas at Austin says “yes.” The Supreme Court will weigh in on the issue during its next term, which begins in October.

In the meantime, Judicial Watch filed an·amicus curiae brief with the U.S. Supreme Court in support of Abigail Noel Fisher, the plaintiff that is seeking review by the High Court of her challenge to this racial spoils system.

Our·amicus brief, filed jointly with the Allied Educational Foundation (AEF), supports Fisher’s claim that race-based admission policies of the·University of Texas at Austin violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Ms. Fisher, who is white, maintains she·suffered discrimination when she applied to the university and was denied admission in 2008.

We challenge the very basis of racial favoritism that is the basis of the “diversity” craze that is nothing more than reverse racism.· According to the·amicus curiae brief (filed on May 29, 2012):

Human race and ethnicity are inherent ambiguous social constructs that have no validity in science. Invoking race and ethnicity to promote diversity relies on racial and ethnic stereotyping of individuals’ viewpoints, backgrounds, and experiences. Admission policies, such as the policy enacted by the University, which seek to classify applicants by crude, inherently ambiguous, and unsound racial and ethnic categories to promote diversity, but which instead promote racial and ethnic stereotyping, can never be narrowly tailored to promote a compelling government interest, and therefore cannot survive strict scrutiny.

Judicial Watch used the·controversy surrounding Massachusetts Senate candidate Elizabeth Warren’s claim that she is Native American to highlight the folly of taking into account an applicant’s race or ethnicity in pursuit of student diversity:

Based on nothing more than “family lore” and “high cheek bones,” Ms. Warren claimed, perhaps quite sincerely, that she was 1/32nd Cherokee and therefore a Native American and a minority.

Under the University’s policy, an applicant who similarly identified herself as an “American Indian” based on “family lore” and “high cheekbones” would gain a “plus” factor toward admission…Imagine a freshman class at the University comprised of 6,715 Elizabeth Warrens, all identical but for the difference in the race or ethnicity of a single great great-great grandparent. How much additional diversity would the University have achieved by taking the race and ethnicity of these students into account in the admissions process?

The answer: None. In fact, permit me to show by example just how useless these classifications can be when attempting to foster so-called diversity.

As we note in our brief, the University of Texas at Austin admission policy “lumps together” two of the most populous countries in the world, China and India, each with over 1 billion people – and a variety of languages, cultures, and religions – under one race category, “Asian.” “The term ‘Asian’ as anything other than a geographic reference is largely meaningless,” we argue.

And we conclude: “To fulfill the promise of the Equal Protection Clause, the Court should find that race and ethnicity can never be narrowly tailored to promote diversity in admissions policies and therefore cannot survive strict scrutiny,” as the law requires.

Since 2005, the University of Texas at Austin has used race in its admissions process, purportedly to achieve greater diversity in its student body. Applicants to the University are currently required to complete and submit a standardized “Apply Texas” application, which requires applicants to identify themselves by race and state whether they are of “Hispanic or Latino” ethnicity.

The admissions policies of the University of Texas at Austin are clearly at odds with the Constitution and promote racial theories that have no basis in science. It’s time for the Supreme Court to put an end to this unlawful practice.

And when it does, the High Court will be fixing a mistake it made nine years ago.

You may recall in 2003, the Supreme Court ruled that race-based admissions policies at the University of Michigan School of Law were constitutional. This decision will now be subjected to fresh scrutiny when the current Supreme Court considers the Fisher case.

Incidentally, Justice Kagan recused herself from hearing the Fisher lawsuit because of her involvement with this case when she served as Obama’s Solicitor General, depriving the defenders of the racial spoils system a presumably sympathetic vote.

Tom_FittonTom Fitton


Judicial Watch, Inc., a conservative, non-partisan educational foundation, promotes transparency, accountability and integrity in government, politics and the law. Through its educational endeavors, Judicial Watch advocates high standards of ethics and morality in our nation’s public life and seeks to ensure that political and judicial officials do not abuse the powers entrusted to them by the American people. Judicial Watch fulfills its educational mission through litigation, investigations, and public outreach.