<p>In the Supreme Court Case Fisher v. University of Texas, based on the documents and oral arguments, what do you PREDICT will be the SCOTUS verdict?</p>
<p>1) A ruling in favor of Abigail Fisher? Or a ruling in favor of UT
2) Will Grutter v. Bollinger be upheld, overturned, or maintained but gutted</p>
<p>**** You are not allowed to discuss Harvard on this thread ****</p>
<p>Is it possible for them to rule against both? I.e. rule against UT affirmative action, but also rule that Fisher would have been rejected anyway in the absence of UT affirmative action?</p>
<p>JUSTICE SCALIA: Her claim is not necessarily that she would have been – would have been admitted, but that she was denied a fair chance in the admission lottery. Just as when a person is denied participation in the contracting lottery, he has suffered an injury.</p>
<p>Possible. However, I do wonder whether having the latter would cause her suit to be dismissed on grounds plaintiff never had the standing to bring up this case in the first place. </p>
<p>I’m wondering especially as nearly all of the Justices attended elite undergrads and law schools and thus, may not be terribly sympathetic to a plaintiff trying to gain admission to a topflight public university with a 3.5 GPA and an 1180 on the SAT. </p>
<p>Those stats combined would definitely be considered subpar compared to what the vast majority of even the bottom 25% of their entering classes came in with…especially if you adjust that SAT to pre-1995 levels*.</p>
<ul>
<li>Subtract around 80-100 points.</li>
</ul>
<p>This is the part that, IMHO, should be irrelevant. The way I see things, in Expected Value terms, the lottery analogy makes sense. So wether Fisher had 100%, 10%, 1%, or 0.0000001% should be irrelevant to the court. What matters is that her expected value of getting admission changed.</p>
<p>Further, I also believe that using an “oportunity cost” argument, a student who did not apply to Texas could also claim injury. The student could argue: I was thinking about applying, But because I knew the “dice was loaded”, I got discouraged to do so.</p>
<p>My legal layman’s understanding of the case is that Fisher was not suing to get admitted into UT the way Allan Bakke was suing to get into UC Davis medical school. But she was suing for damages because her application never got fair consideration because outside the 10% Plan, the selection criterion for the Holistic Plan was “race above all”.</p>
<p>In the oral arguments, it was discussed that UT was concerned that the Top 10% Plan was not admitting enough of the right kind of URM students (i.e. the 10% Plan URM admits were predominantly low socio-economic class), and that UT needed to use the Holistic Plan to admit high SES URMs.</p>
<p>If lawsuits were allowed on that basis without a reliably high burden of proof to ensure that’s actually the case, I can easily see the state and federal courts end up getting bogged down by tens of thousands of such students advancing such sketchy hypothetical type arguments. </p>
<p>What public policy interest would allowing such types of “I was thinking about applying, But because I knew the “dice was loaded”, I got discouraged to do so.”? How does one define the high burden of proof necessary to prevent those who decide to launch such a suit for frivolous reasons such as a payday, school rivalries, or scoring ideological political points?</p>
<p>Ironic considering those who favor the plaintiff on ideological grounds tend to be the same ones who are against “frivolous litigation”…not creating an opening which’ll create a potential avalanche of it…</p>
<p>Then again, I can easily see many underworked/unemployed lawyers licking their chops at finding another venue to greatly expand their practices.</p>
<p>Supreme Court strikes down UT admission system finding that no compelling state interest exists in using race as a factor in admissions sufficient to withstand Fisher’s EPC challenge given the UT 10% rule (now I guess 7%) that already guarantees a solid nucleus of minorities at UT (thus, not a broad decision thats strikes down all AA programs at state schools). I think it will be 5-4 with Kennedy being the swing vote and writing the relatively narrow majority opinion.</p>
<p>Great #7 post, and I agree with a lot of what you say. I should have made it clear that it was a theoretical argument.</p>
<p>I fully understand that, in reality, courts do not take cases about very small chances or very small opportunity cost situations. And also I also agree that it is extremely unlikely that a case such as “I was discouraged to apply” would be accepted by the court. Again, I was not clear and I should have been. </p>
<p>Nevertheless, just to clarify even more, and this is not hypothetical, it is a fact: courts do take “opportunity cost” cases that are well substantiated. The other thing I want to say is that there is a very clear difference between a theoretical situation and a pure ideological situation. It is also important to clarify to everyone that a SCOTUS decisions becomes part of our system of law. Therefore, a situation in which courts would be bogged by thousands of students would never happen, because they would not need to plead their cases in the same way that the initial plaintiff did.</p>
<p>Lastly, I apologize for my use of the expression “the dice are loaded”, because it does have a negative connotation. I know it is not nice to hear this. As it was not nice for me to hear “sketchy theoretical”. But I was the first offender, so I deserved it.</p>
<p>Since you brought the subject of “frivolous litigation”, I will tell you something about my ideology (I am using ideology intentionally here to illustrate that theoretical and ideological are different concepts): I am divided about the issue of “frivolous litigation”. Ideologically, I dislike litigation in which the plaintiff has full knowledge that the case has no legal merit, but the plaintiff pleads it anyway to gain time, publicity, bargaining power, etc. On the other hand, also ideologically, I love situations in which a plaintiff pleads a case based on an important principle of our system of laws, however small the damages may be.</p>
<p>The ideology comment was addressed generally…not to you necessarily. </p>
<p>When I read your post, my main thought was if such suits were allowed, how would the courts deal with the avalanche and the administrative overloads it would have on the court system and judges. </p>
<p>
</p>
<p>There’s also some consideration given to ensuring court systems at all levels aren’t unduly overloaded administratively as a result of allowing certain types of suits or litigation tactics. </p>
<p>
</p>
<p>Precisely because most judges are rational enough to not only realize allowing lawsuits/litigation tactics which pose undue administrative burdens on court systems is not only ultimately against the larger public interest…it also greatly increases their own workload which goes against their occupational and personal self-interest.</p>
<p>And the fact that the decision will be taken in consideration by both potential plaintiffs and potential defendants, who both will plan/act accordingly moving forward.</p>
<p>Altough this was a digression, I think it was nice to have. Since it highlights the idea that a SCOTUS decision on the case in question (Fisher) is likely to have broad repercussions. Even if the repercussion is simply to tell other potential plaintifs that they better wait 16 years.</p>
<p>My stock (and housing predictions) stink too. As for this prediction, Kennedy also dissented in Grutter and so there may be a chance all AA will go down. But I do not think Kennedy will want to be known in history as the judge who outlawed any type of AA.</p>
<p>Charlieschm,</p>
<p>Per my post earlier on a different thread quoting the Dean of Emory law school, the EPC clause requires state action and so will not apply to privates. BUT there are federal civil rights statutes in which actions may be brought against privates based on EPC that may force privates to change their systems too. I do not know the answer to this but think it would be interesting to find out whether the privates altered their admissions policies in light of the split decision in the UM case (Grutter and forget name of its twin).</p>
<p>This case is ironic for another reason; unlike the California and Michigan cases, this is an instance where the state university has a documented and extensive record of past de jure segregation and discrimination. The ‘Sweatt Case’ involving U of T was a landmark decision on university admissions issued by the Supreme Court prior to Brown v Board of Education.</p>
<p>The irony in this case is that while the discussion is all about racial preferences, the elimination of the ten percent rule would mostly have a negative impact on the type of the students such as Fisher. The 7-10 percent rule in Texas has been the ticket for many rural non-minorities and suburbans little Braden and Sally who exploit the ranking games. </p>
<p>The system of automatic admissions has not collapsed because many of the minorities did NOT use their admissions to the flagship schools, as they did not feel comfortable or could not afford the residential fees. </p>
<p>The reality is simple … without an automatic admission, UT could (and should) rely on a holistic admission system and INCREASE its admissions to reflect the racial distribution of Texas, and its new demographic reality. </p>
<p>A case like this is bound to have unexpected outcomes. There will be losers, but not necessarily the obvious targets of this orchestrated attack.</p>
<p>I say Fisher prevails, but with a fractured Court, either 4-1-4 or 3-2-5, with Justices Scalia, Thomas, Alito and possibly Roberts voting to end all use of race-based affirmative action by public universities, Justice Kennedy (possibly joined by the Chief) concurring in the judgment on narrower grounds, throwing out the University of Texas’ specific approach and restricting but not completely ending race-based affirmative action at other public universities, and the 4 liberal Justices dissenting. No way does the decision reach private universities because the Court is not prepared to declare them “state actors” and therefore the Equal Protection clause doesn’t apply to them. </p>
<p>Kennedy is skeptical of race-based affirmative action but I think the previous poster who suggested he doesn’t want to go down in history as the Justice who ended it is probably right. Just as importantly, Kennedy relishes his role as “the decider,” the pivotal fifth vote whose vote is the only one that really counts. Roberts has shown some signs of wanting to take that role away from Kennedy. Roberts might prefer a narrow ruling that all 5 conservative Justices and possibly even 1 or 2 of the liberals might join, but I think ideology on both sides is too strong on this one. Scalia, Thomas, and Alito are pretty hard-line in their opposition to any use of race-based affirmative action, and the liberals seem equally staunch in defending it. That will leave Roberts trying to work something out with Kennedy. Effectively, then, they’d be a two-man majority, because their concurrence will control. Unless Kennedy and Roberts can’t agree, in which case Roberts will probably join Scalia, Thomas, and Alito, and Kennedy will be left calling the shots–just where he likes to be.</p>
<p>Just my guess after talking to some longtime Court-watchers.</p>
<p>Again, you better be careful with what you wish for. Holistic admissions without racial preferences will simply place a higher value of the social and economic status of the applicants (often a proxy for race) and how the disadvantaged students made efforts to overcome adversity.</p>
<p>For the record, the admission process, especially at the most selective schools, has done a MUCH better job (by a large margin) in establishing a racial diversity than it has done with the SES diversity. </p>
<p>To understand the impact of removing the 10 percent automatic admission in Texas, you would be surprised at the tidal wave of protests were the program amended to lower the percentage to 3,5, or 6 percent in … the wealthy suburbs around DFW, Austin, or Houston, and in the mostly white rural areas of Texas where football is king. </p>
<p>Simply stated, the 10 percent rule has a much bigger impact in Plano or Grapevine than it does in McAllen!</p>