Fisher v. University of Texas at Austin (11-345)

argument 11-345

Fisher v. University of Texas at Austin

Supreme Court of the United States 1h 18m 6 speakers 8 chapters transcribed 6 days ago official recording ↗

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What constitutional injury and standing issues does Fisher raise against the University of Texas?

John G. Roberts 0:00

Well, I get to say that this is case number 11-345, Fisher against

Dana Nessel 0:05

the University of Texas at Austin. Then you get to say. Mr. General Souter trained me too well. Mr. Chief Justice and members of the Court, and may it please the Court, the central issue here is whether the University of Texas at Austin can carry its burden of proving that that its use of race as an admissions plus factor and the consequent denial of equal treatment, which is the central mandate of the Equal Protection Clause, to Abigail Fisher met the two tests of strict scrutiny which are applicable first.

Ruth Bader Ginsburg 0:43

JUSTICE GINSBERG. Mr. Ryan, before we get to that, because the Court is supposed to raise it on its own, the question of standing, the injury If the injury is rejection by the University of Texas, and the answer is no matter what, this person would not have been accepted, then how is the injury caused by the Affirmative Action Program?

Dana Nessel 1:15

GENERAL VERRILLI. Well, Justice Ginsburg, the first injury that was before the Court was the use of a system which denied equal treatment. It was a constitutional injury. And part of the damage claim was premised directly on the constitutional issue. How

Elena Kagan 1:29

do you get past Texas v. Lesage with that injury, which says that mere use of race is not cognizable injury sufficient for standing?

Dana Nessel 1:39

Lesage was litigated on its merits, and the question was whether Lesage could carry his case on summary judgment when it was apparent that his complaint, which was that he was denied access to the graduate program at the University of Texas — was not sustainable. As I said, there are several factors in this case that are quite different. First, there's a constitutional injury as such, and the Court has recognized it. Second, the fact premise, she could not have been allowed in under any circumstance, was never tested below, wasn't raised below. It comes up in a footnote in —

Elena Kagan 2:14

Can I go to another side? She's graduated.

Dana Nessel 2:17

Correct.

Elena Kagan 2:18

She disclaimed a desire after her application to go to the school at all. She was permitted to apply for the summer program and get in automatically, and she didn't, correct?

Dana Nessel 2:29

MR. No, that's not correct, Your Honor. She was not automatically admitted. She was considered for the summer program and rejected. You're talking about the CAP program, where she could have attended a different university in the Texas system, and had she been able to achieve — JUSTICE SOTOMAYOR But she's graduated. MR. She has

Elena Kagan 2:44

graduated. JUSTICE SOTOMAYOR And jumped at relief she's not going to get. So what measure of damages will she get or will she be entitled to?

Dana Nessel 2:53

Well, that issue, of course, is bifurcated, and we've reserved the ability to

Elena Kagan 2:57

— But you have to claim an injury. So what's the injury that you're claiming that would sustain a claim of damages?

Dana Nessel 3:04

The denial of her right to equal treatment is a constitutional injury in and of itself, and we had claimed certain damages on that. We started the case before it was clear whether she would or wouldn't be

Elena Kagan 3:14

admitted. You still haven't answered how Lussange gets away from that. Well, Lussange — Give me another damages question.

Dana Nessel 3:22

If we then, on remand, were to assert damages contingent upon the fact that she should have been admitted to UT and was not admitted, we would then have to prove that but for the use of race she would be admitted. That's the thrust of Lesage. Whether we can prove it or can't prove it is something you can't tell on this record. It's merely asserted. And I would point out that Texas said below there was no way to determine that issue.

Antonin Scalia 3:48

We've had cases involving alleged discrimination in state contracting, and we haven't required the person who was discriminated against because of race to prove that he would have gotten the contract otherwise, have we? No, sir. It's been enough that there was a denial

Dana Nessel 4:12

of equal protection. That is correct, and that is our first premise. And I would say that the same issue was raised in Bakke. And in Bakke, the contention was he couldn't have gotten into the medical school, therefore he has no case.