Lawyers Debate Affirmative Action Case

GW hosted a panel with four lawyers who have submitted friend of the court briefs on both sides of the case.

From left to right, attorneys Deborah Archer and Joshua Civin; Christopher Bracey, senior associate dean for academic affairs at GW's Law School; and attorneys Erik Jaffe and Andrew Grossman.
September 26, 2012

Four lawyers faced off Monday in George Washington University’s Jack Morton Auditorium on an affirmative action case set to be heard by the Supreme Court next month.

In the case, Fisher v. University of Texas, Abigail Fisher, who applied and was denied admission to the University of Texas at Austin as an undergraduate, alleges the public university gives an unconstitutional advantage to African Americans and Latinos by considering race in one arm of its admissions process. But the University of Texas says it considers applicants holistically where race is one of many factors, and that its approach is allowed by the 2003 decision of Grutter v. Bollinger, a Supreme Court case that ruled colleges and universities can take race into account in the admissions process.

Moderated by Christopher Bracey, senior associate dean for academic affairs at the Law School, participants included: Deborah Archer, associate dean for academic affairs at New York Law School; Joshua Civin, counsel to the director of litigation at the NAACP Legal Defense & Educational Fund, Inc.; Andrew Grossman, an attorney at Baker Hostetler and legal fellow at the Heritage Foundation; and Erik Jaffe, an appellate litigator.

GW, which considers race among other factors in a holistic review of an applicant, has also submitted a friend of the court brief with nine other universities in support of UT.

“As a university, we have a vested interest in creating and attracting a diverse student body, a diverse faculty and staff, and creating an environment in which we learn from each other as much as possible,” Provost Steven Lerman said in opening remarks.

Dr. Lerman said disciplines like science, technology, engineering and mathematics are just a few examples of fields where diversity has a positive effect. Having a diverse team working on a problem tends to lead to more innovative, “out-of-the-box” solutions, Dr. Lerman said.

All the panelists have filed friend of the court briefs—Ms. Archer and Mr. Civin filed them in support of the university and Mr. Grossman and Mr. Jaffe filed them in support of Ms. Fisher.

In examining UT’s policy, Mr. Grossman said he was troubled by the “lack of transparency,” since the university doesn’t release details regarding how much race affects the decision on whether to admit an applicant. Mr. Jaffe agreed, adding the “government should never under any circumstances take race into account” when making decisions.

But Ms. Archer and Mr. Civin disagreed.

“Race is incredibly important to who I am, it’s incredibly important to who a lot of people are. It’s not something you can remove like a coat or a jacket and say now this is who I am when you take race off of this,” Ms. Archer said. “And to say that we’re going to give a holistic review of everything except your race is pretty demeaning to the person whose identity is tied to their race.”

Plus, college is often the first time many students are exposed to a wide variety of people of different races, cultures and backgrounds, which fosters innovation and is “where you start to get the point of true learning,” Mr. Civin said.

Mr. Jaffe said he didn’t disagree that diversity is important in generating different perspectives. “What I do disagree with is that it’s a compelling interest,” he said.

In his opening remarks, Mr. Bracey said affirmative action is the defining issue of the post-civil rights era and it’s “high time for our generation to have a conversation about it.”

The Supreme Court will hear the case Oct. 10. Fifteen briefs have been submitted supporting Ms. Fisher while 72 support UT.

GW Law Forum: Fisher v. University of Texas

The George Washington University held a forum to discuss the affirmative action case of Fisher v. University of Texas, which will be argued in the Supreme Court on October 10.