Amicus briefs in Fisher: A cornucopia of law, facts and occasional curiosities

Editor’s note: Richard Lempert submitted an amicus brief in this case on behalf of The University of Texas at Austin and chaired the University of Michigan Law School admissions committee that wrote the affirmative action policy approved by the Supreme Court in Grutter v. Bollinger.

Many of our countries most important and divisive disputes eventually find their way to the Supreme Court for partial or complete resolution. Then stories about the Court and the issues the Justices confront tend, briefly, to dominate our printed, online, radio and television media. Those who most wish to understand the issues gobble the news from all sources. News reporting, however, leaves out much that might affect the Court’s decision, even when reporting is at its best. When reporting is not at its best, misunderstandings and biases may color what a person sees as true. For those with the time and interest there is, however, another way to learn not just what a case is about, but also to better understand the facts and arguments that may influence the Justices’ votes. Briefs filed in high Court cases, and amicus briefs in particular, offer in depth discussion of relevant facts, law and legal and philosophical perspectives. These briefs can be found on the Supreme Court’s website, as well as on other websites, like SCOTUSBLOG. Best of all, access is free

A trip through the 70 or so amicus briefs filed in Fisher v. University of Texas at Austin is illustrative. One need not even read the briefs to get a good idea of which side the establishment favors. Amicus briefs supporting UT-Austin outnumber those supporting Fisher by a ratio of about three to one. The university’s amici’s briefs include nine submissions from colleges and universities alone or in groups; two from the business sector, one of which is in the name of such establishment stalwarts as DuPont, IBM and Intel; four by bar associations, including the American Bar Association; two by leading academic research associations, with multiple similar associations signing on to one of them; briefs from Senator Harry Reid and Representative Ruben Hinojosa, each with multiple congressional signers; one by a group of distinguished military leaders, and one by the Solicitor General of the United States. The 17 briefs that support Fisher, three of which are ostensibly offered in support of neither party, consist almost entirely of briefs offered by individuals or well-known centers of conservative policy advocacy and litigation support. The latter include the Cato Institute, the Center for Individual Rights, Judicial Watch, and the Pacific and Mountain States Legal Foundations. If the establishment had the influence often attributed to it, one would expect UT-Austin overwhelmingly to prevail. That the smart money favors Fisher, is testimony to the way power disparities can be leveled when courts are the deciders.

More rewarding than counting the briefs is reading them. Are you concerned with the accuracy of Justice Scalia’s assertion that minority students are hurt by affirmative action because they can’t flourish when their academic credentials are below those of most other students? You can read the briefs by Gail Heriot and Peter Kersinow and by Richard Sander to see the evidence that influenced Scalia’s perception. You should also, however, read the brief I submitted, and the briefs of the American Educational Research Association and of the Empirical Scholars for a very different a picture—a review of studies that debunk the evidence in the briefs on which Scalia relies and suggest that the topical affirmative action beneficiary is not only not harmed by attending a selective school, but may also be more likely to graduate and do well in later life thanks to benefitting from a preference.. But you need not take my word on this. Rather, you can read the arguments that both sides offer, learn about the studies they cite, and reach your own conclusions.

Perhaps you are concerned about tensions between the minority and Jewish communities over affirmative action? If so, you might want to read the briefs by the Anti-Defamation League and the joint submission of the American Jewish Committee, the Union for Reform Judaism, the Central Conference of American Rabbis, and Women of Reform Judaism, noting that all these groups support the University’s position. If you are similarly interested in learning how Asians might view affirmative action, contrast the brief filed in support of Fisher by the Asian American Legal Foundation (representing 117 affiliated organizations) with the briefs of the Asian American Legal Defense Fund and its 21 affiliated organizations or the brief submitted by Members of Asian-Americans Advancing Justice (representing more than 140 affiliates). These latter briefs support the University’s position.

If the idea that class-conscious affirmative action might bring about the same racial diversity as race-conscious admissions intrigues you, you should read the brief of Richard Kahlenberg, who argues forcefully for this positon. But you should then read the brief I submitted along with the briefs offered by the American Educational Research Association and by 823 social scientists, all of which dispute Kahlenberg’s claims. You should also look at the University of Michigan’s brief. Michigan reports that despite polices that give extra weight to social class in admissions the proportion of African Americans on its campus has fallen by almost half since a state-imposed ban on race-conscious admissions was enacted.

Some skeptics see the diversity rationale for affirmative action as nothing more than a smoke screen for efforts at race balancing. To assess such claims further, exploration of the submissions by the American Educational Research Association and by 823 social scientists is warranted. Each amicus describes studies showing real value to increased racial diversity, including lowering interracial tensions. Their discussions of the issue can be contrasted with the Southeastern Legal Foundation’s argument that affirmative action promotes racial stigma.

If your goal is to get a better grasp of the law involved and resolutions that are legally possible, numerous briefs, including especially the parties’ briefs, can help. For extreme positions you might want to read the brief of the Center for Law & Justice which argues that any governmental use of race to assign rewards or disabilities is unconstitutional and contrast it with the position of the American Civil Liberties Union, which argues that the Fourteenth Amendment should never be interpreted to preclude the consideration of race in efforts to promote equality.

Or perhaps you are a sports fan. Then you might be interested in the brief offered on behalf of the University by the National Association of Basketball Coaches and specifically endorsed by such coaching luminaries as Jim Boeheim, Mike Kryzyzewski, Tom Izzo, Nolan Richardson and Tubby Smith. They tell the Court that they have “experienced first-hand the advantages of having a diverse student body” and assert that in their experience “students of all backgrounds take the lessons learned from living in such an environment to communities beyond the confines of campus.”

Finally, whatever your views of affirmative action, you can acquire a bit of fascinating and valuable history by reading the amicus brief submitted by the Family of Heman Sweatt. As a proud family recounts, Heman Sweatt was a postal worker with higher ambitions. He applied to and was denied admission at the University of Texas Law School. The University did not seek to hide its one reason: “the fact that he is a negro.” Sweatt brought suit. In 1950, aided by the advocacy of Thurgood Marshall, he prevailed in the case of Sweatt v. Painter. Sweatt held that no matter how much the state of Texas might invest in a segregated law school, it could never offer a legal education equal to the education Sweatt would get at Texas. When Brown v. Board of Education was argued four years later, Sweatt v. Painter was a key precedent for rejecting the doctrine of “separate but equal.” Heman Sweatt did enter the University of Texas Law School, but the stresses were such that he dropped out in his second year. Instead of becoming a lawyer, he acquired bachelors and master’s degrees in social work and took a job with the Urban League, where he worked for 23 years. Today at UT Law School a professorship and scholarship bears his name, as does half of the UT-Austin campus, and the courthouse where his case was first tried. But in the family’s view, although Sweatt’s legacy is honored by UT in many ways, there is “none more important than its commitment to creating a genuinely diverse student body.”

In short, intellectual riches reside in amicus briefs. People who wish to explore for themselves the arguments on both sides of important Supreme Court cases can learn from the parties, and from those who feel most strongly about the issues, what they think should matter most to the Court. Facts, law, policy, history and the idiosyncratic surprise, like the Sweatt family’s amicus brief, are all available for perusal, unfiltered by the media. Those who wish to further explore the facts and arguments of Fisher v. University of Texas at Austin are just a click away. Enjoy.