American Association for Access, Equity and Diversity Files Friend of the Court Brief in the Fisher Affirmative Action Case

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Association supports the University of Texas’ “holistic” diversity program, calls on the Court to dismiss the case as moot and argues that the Court’s review standard has a “perverse” effect on the Fourteenth Amendment’s intended beneficiaries

The American Association for Access, Equity and Diversity (AAAED), an organization of equal opportunity, affirmative action, institutional equity and diversity professionals, filed its amicus curiae brief today at the U.S. Supreme Court in support of the University of Texas. For the second time the University is defending its consideration of race in admissions. AAAED is joined in its brief by eight other civil rights and advocacy organizations.*

Abigail Noel Fisher, an applicant who was denied admission to the University in 2008, is seeking the Supreme Court’s re-review after the lower courts upheld the University’s program when the case was remanded in 2013. Fisher asserts that she was denied admission because the university impermissibly used race as a factor in its decision. She seeks to bar any use of race in the admissions process.

AAAED is a national nonprofit association of professionals managing affirmative action, equal opportunity, diversity, and other human resources programs. Founded in 1974 as the American Association for Affirmative Action, AAAED is the oldest operating association of professionals in the Equal Opportunity profession. A leader in training and advocacy for professionals in higher education, private industry and government, AAAED’s mission is to nurture understanding of and offer advice to enhance access, equity, and diversity in employment, economic, and educational opportunities.

“AAAED is uniquely suited to opine on the importance of diversity programs,” said organization president Marshall Rose. “Given its mission and membership composition, AAAED has an exceptional understanding of both (1) the need for diversity on campus in order to ensure that students receive the best possible education and graduate with the skills and experiences necessary to succeed as citizens, workers, and leaders, and (2) the importance of diversity on campus to employers who, in order to remain competitive, must hire qualified workers reflecting the increasingly diverse communities and markets in which their businesses now operate.”

In its brief AAAED argues that Ms. Fisher lacks “standing” to have her case heard because she cannot demonstrate that she has been injured and she could not show that but for the use of race, she would have been admitted. Moreover, the university has indicated that her academic record was not strong enough to gain her admission, even if race were not a factor. Ms. Fisher went on to graduate from another institution. Hence, her case is essentially moot and should be dismissed.

AAAED also asserts that the standard of review used by the Supreme Court in cases involving racial classifications is “strict in theory, fatal in fact.” AAAED recommends that another, fairer process be used to weigh the merits of cases involving race. The Court’s current application of strict scrutiny has resulted in inconsistent outcomes and a “spectrum approach” is a better alternative. "Ironically, under the current strict scrutiny analysis it is African Americans, the intended beneficiaries of the Fourteenth Amendment, whose programs are subjected to the highest levels of scrutiny. Cases involving gender and presumably sexual orientation or disability would be or are subjected to a less stringent standard," said Shirley Wilcher, AAAED Executive Director.

In cases invoking the Fourteenth Amendment to the Constitution strict scrutiny is applied both to programs that benefit racial minorities who have endured centuries of discrimination, and to cases involving the invidious use of race in education, employment, and other spheres. AAAED urges the Court to re-think that approach and distinguish legitimate uses of race from illegitimate ones.

Lastly, AAAED argues that removing race from the admissions process will not result in racial neutrality. Using primarily standardized testing would have an adverse impact on disadvantaged minority students. In the employment context the use of such tests would constitute a prima facie case of discrimination. Using the holistic review process embraced by the Supreme Court in the 2003 Grutter v. Bollinger decision ameliorates the impact on disadvantaged students who do not test as well as others but would be otherwise qualified to succeed in an academic setting.

Added Mr. Rose: “The Supreme Court should put an end to this unfortunate litigation by dismissing Ms. Fisher’s case as moot. Diversity continues to be a compelling interest in this nation, especially as it becomes increasingly multi-ethnic while economic, social and educational disadvantages persist. This is not the time to reverse the gains we have made since 1964.”

*Also joining the brief: California Hispanic Chambers of Commerce ("CHCC"), Feeding and Teaching Organization of Los Angeles ("Feeding and Teaching"), Fund for Leadership, Equity, Access and Diversity ("LEAD Fund"), California Leadership Institute ("CLI"), National Association for Diversity Officers in Higher Education ("NADOHE"), National Organization for Women Foundation ("NOW Foundation"), TODOS UNIDAS, Inc., and Transgender Legal Defense & Education Fund ("TLDEF").
Oral argument: December 9, 2015
AAAED Brief may be found at:

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Shirley J. Wilcher

Shirley J. Wilcher
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American Association for Access, Equity, and Diversity - AAAED
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