On July 26, the U.S. District Court for the Western District of Texas dismissed the latest case filed by Students for Fair Admissions (SFFA) against the University of Texas at Austin, challenging the university’s use of race in undergraduate college admissions. The court invoked the doctrine of res judicata in holding that the case was barred by the previous case of Fisher v. University of Texas, in which the U.S. Supreme Court upheld the university’s use of race as furthering the university’s compelling interest in the benefits of diverse student enrollments carried out in a narrowly tailored way.
The case against the University of Texas is one of four cases that SFFA is currently pursuing in an attempt ultimately to overturn the Supreme Court’s decision in Grutter v. Bollinger, which held that colleges and universities may use race-conscious admissions programs as long as they can prove that they are doing so to promote the educational benefits of diversity and that their use of race is narrowly tailored to that purpose.
The decision of the Western District of Texas will not have a major impact on SFFA’s ultimate goal because it is based on the particular litigation history at the University of Texas at Austin. However, colleges and universities using race-conscious admissions programs need to be aware that such programs are subject to challenge by private plaintiffs and may require substantial change in coming years depending on when the Supreme Court next reviews the issue and what it ultimately decides.
Background on Cases Challenging Admissions at the University of Texas at Austin
SFFA filed this litigation against the University of Texas at Austin on behalf of two white students who were denied admission in the fall of 2018 and the fall of 2019, under an admissions program that SFFA alleged violated the equal protection clause. SFFA’s allegations were very similar, if not identical to, the allegations made by Abigail Fisher when she sued the University of Texas at Austin challenging her denial of admission for the class entering in the fall of 2008. In both suits, the plaintiffs alleged that the university’s race-conscious admissions program violated the equal protection clause in several ways and furthermore that no use of race by a college or university is ever constitutionally permissible. Of course, the university was ultimately successful in the Fisher case. After two trips to the Supreme Court, that Court in 2016 upheld the university’s race-conscious admissions program, on a 5-4 vote.
SFFA filed suit against the University of Texas at Austin a second time likely not because the facts in Texas had changed, but more likely because the facts in Washington, D.C. had changed. More precisely, Justice Kennedy, the author of the Fisher decision had left the Court, and in addition, Justice Ginsberg, who was a member of the five Justice Fisher majority, had passed away. Their replacements, Justices Kavanaugh and Barrett, are widely anticipated to be more skeptical of affirmative action and may be willing to overrule Fisher and its precedent, Grutter..
SFFA’s Suit Against University of Texas at Austin Dismissed
The University of Texas at Austin filed a motion to dismiss for lack of standing and a motion for summary judgment based on res judicata. The court denied the motion to dismiss, finding that SFFA had standing to proceed, basing its decision in large part on the fact that the unnamed members of SFFA brought claims virtually identical to Abigail Fisher’s who was implicitly held by the Supreme Court to have standing. The court also held that SFFA had shown that it was a membership organization sufficient to invoke associational standing through the interests of its members. In reaching this conclusion, the court relied, in part, on the analysis of the First Circuit finding, in a separate suit brought by SFFA against Harvard, that SFFA had standing to challenge Harvard’s race-conscious admissions program,.
The district court, however, granted the university’s motion for summary judgment based on res judicata or claim preclusion. This doctrine prevents the same or related parties from trying the same issues in a subsequent lawsuit. Because there was no question that the issues in Fisher were litigated to conclusion by a court of competent jurisdiction, the only parts of the test for res judicata that were at issue were: 1) whether the parties in Fisher and in the present litigation where the same or in privity with one another and; 2) whether the claims in both suits were the same.
The district court found that the parties in both cases were the same or were in privity with one another. The defendants were the same parties that had been sued in Fisher—the University of Texas at Austin and certain of its officers. The district court also found that Abigail Fisher, the plaintiff in Fisher, was in privity with SFFA in the instant suit. The court made this finding based on the roles that Edward Blum, president and board member of SFFA, and Fisher, who is also an officer and board member of SFFA, played in the Fisher case and in SFFA’s subsequent case against the University of Texas. The court found that Blum was really the moving force behind the suit in Fisher, having funded the litigation, found the lawyers and identified Fisher as an appropriate plaintiff to bring the claims he envisioned. And the court found that Blum, along with Fisher, had effective control of SFFA, despite its five member board.
The district court also found that the issues in both suits were the same. The court rejected differences in the way that the university described its use of race in the time period between Fisher and the instant suit as mere semantics and found that SFFA’s claim that the percentage of African Americans in the class remaining the same over the intervening years was not different from the facts in 2008. Finally, while SFFA argued that the research supporting race-neutral alternatives in admissions has changed, the court found that the remedies SFFA was requesting in the current suit were the same remedies that Fisher had requested in 2008. Accordingly, the court dismissed the suit pursuant to res judicata.
Blum has stated that he will appeal the dismissal to the U.S. Court of Appeals for the Fifth Circuit.
Other Pending SFFA Litigation
This is just one of four cases that SFFA has pending against universities challenging the use of race in undergraduate admissions. SFFA also has pending:
- SFFA v. Harvard. Harvard has so far prevailed against SFFA in this, the most closely watched of SFFA’s cases. SFFA’s petition for certiorari, asking the Supreme Court to review the decision in favor of Harvard by the U.S. Court of Appeals for the First Circuit, remains pending. In June, the Supreme Court called for the views of the Solicitor General. SCOTUSBLOG predicts that the Solicitor General will likely not file its brief before late November or early December. If the Solicitor General files its brief by the end of 2021, the Supreme Court could hear and decide this case before July of 2022.
- SFFA v. University of North Carolina. The parties are awaiting a decision after a bench trial before the U.S. District Court for the Middle District of North Carolina. Post-trial briefing was completed in March 2021, so a decision from that court could come any day. Whichever side is disappointed in that case is expected to appeal to the U.S. Court of Appeals for the Fourth Circuit.
- SFFA v. Yale. In February 2021, SFFA filed suit against Yale University, alleging that its admissions program discriminates against Asian American students on the basis of race. The U.S. District Court of the District of Connecticut has stayed all proceedings in the case pending decision by the Supreme Court on the petition for certiorari in the Harvard
Any one of these cases could have a significant impact on race-conscious admissions programs at colleges and universities across the country. We will continue to monitor each case and provide updates and analysis as decisions are announced.