Now that the Supreme Court has agreed to review the affirmative-action case Fisher v. University of Texas, it will have to leap the procedural hurdles that Texas raised in its brief in opposition and that I raised here in a post in October. If Texas attempts to refund the fees at issue, as it has telegraphed it might, reaching the merits will require a least a little doctrinal innovation.
First, I’ll recap the developments since my prior post. In our arguments that Fisher was an imperfect cert. vehicle for such weighty constitutional questions, both Texas and I concluded – and Fisher does not dispute – that all that’s really at stake in this case is $100: Fisher’s $50 application fee plus a $50 housing deposit. (Because Fisher never intended to reapply to UT, is about to graduate from another school, and did not bring the case as a class action, the Fifth Circuit struck all forward-looking injunctive relief. Fisher has not challenged that holding in her cert. papers.) Texas has suggested that it could tender that $100 to Fisher if the Supreme Court grants cert., thereby mooting the case “beyond any doubt.” Texas could have ponied up before now, but doing so would have erased the Fifth Circuit precedent it is fighting to preserve. Fisher characterized Texas’s suggestion as an empty threat to the Court: if you grant cert. in this exceedingly high-profile case, we have the power to make it vanish in an instant.
If Texas now tenders the $100, the Court must break some doctrinal ground to keep the case alive. None of the moves available to the Court are straightforward plays under existing Supreme Court case law, so Fisher would necessarily make some new law on federal jurisdiction alongside its ultimate ruling on race in university admissions.
Texas predicted that “a grant of certiorari will drag this Court into a thicket of procedural and jurisdictional disputes.” Here’s how they might be resolved.
1. The $100 claim. Texas argues that the $100 claim is not sufficient to confer Article III standing on Fisher. Texas contends that the three prongs of the standing inquiry – injury-in-fact, causation, and redressability – cannot be simultaneously satisfied on the $100 claim. Quoting Texas’s BIO (pages 14-15, citations omitted):
If [Fisher’s] injury is the lost $100 spent on her application fee and housing deposit, the she fails the “causation” requirement of Lujan. If she instead characterizes her “injury” as a denial of equal treatment, then she cannot establish redressability because her complaint presents no claim for nominal or compensatory damages [such as lost future earnings or higher tuition]. And Fisher herself characterizes the “depriv[ation] . . . of the opportunity to attend . . . UT Austin” as “an injury that cannot be redressed by money damages.”
Fisher counters that her $100 claim is restitutionary and that restitution is a “form of compensatory relief that is capable of redressing [her] constitutional injury” (Reply at 3). Now that the Court has granted cert., Texas must assume that the Court accepted Fisher’s argument in reply, raising the possibility that Texas will make good on its threat to tender the $100 to moot this claim. If that happens, and if Fisher rejects the offer, there is no clear Supreme Court authority on whether the case would in fact be moot. The Court could make some new law on that question, or it could choose another basis for jurisdiction, such as those I give below, to justify deciding the case on the merits.
2. The Court could interpret Fisher’s request for a declaratory judgment as retrospective. In my October post (back when there were two plaintiffs), I noted that the plaintiffs’ request for a declaratory judgment is, on its face, forward-looking:
The plaintiffs’ actual complaint does not ask for a backward-looking declaratory judgment that their rights were violated when they applied to the University, or that they should or would have been admitted to the University of Texas absent the University’s use of race. Instead, it asks for a declaratory judgment that the University’s admissions policies and procedures “violate” (present tense) the Fourteenth Amendment and federal civil rights statutes. It makes no reference to the plaintiffs themselves or to the year they applied for admission. At most, the plaintiffs have standing to seek such a declaratory judgment retrospectively for the year they were denied admission (2008), but that is not how they styled their prayer for relief.
The Court could construe the request for a declaratory judgment as a request for retrospective relief focused on the admissions policies in place in 2008, when Fisher was denied admission. This is not an argument Fisher has made, but the Court is free to consider it.
3. The Court could hold that nominal damages need not be pleaded in a complaint. In a 1978 decision, Carey v. Piphus, the Supreme Court held that plaintiffs whose procedural due process rights were violated are entitled to nominal damages ($1) absent proof of actual injury. It will probably be no trouble for the Court to extend that principle to Fisher’s Equal Protection context. But Fisher failed to include a prayer for nominal damages in her complaint. She now contends that doing so was unnecessary, but she only cites a Third Circuit footnote for support. If the Court adopts that footnote’s approach, the case will remain alive.
Alternatively, the Court could interpret Fisher’s catch-all boilerplate demand for “[a]ll other relief this Court finds appropriate and just” to include nominal or even compensatory damages. Texas points to several lower court decisions rejecting that approach, and Fisher points to several others accepting it. It is unclear whether it would persuade the Court because, under Fisher’s theory, virtually no case could ever become moot. Texas also contends that there is a “general principle that a claim for damages not specifically requested in the plaintiff’s complaint cannot prevent a case from becoming moot on appeal” (BIO at 18 n.7). The Supreme Court has never squarely addressed these issues, but this case may be its opportunity.
Finally, the Court might consider the possibility that the district court on remand would allow Fisher to amend her complaint or, alternatively, would grant nominal damages under Rule 54(c) despite a deficient complaint. The biggest stumbling block to that theory is a 2009 Supreme Court case, Alvarez v. Smith. In Alvarez, the Court said that because the district court hadn’t yet ruled on a pending motion to add damages to the complaint, the Court must evaluate the case solely by reference to the (by-then moot) injunctive and declaratory claims. A distinction here is that Fisher included some damage claims in her complaint (for $100), which may turn out to be moot, too. The Court could decide whether that distinction should make any difference.
4. The “capable of repetition, yet evading review” exception. An exception to mootness doctrine obtains, most famously in the abortion context, when a claim is “capable of repetition, yet evading review.” Typically such claims are ones that become moot in a short time, before litigation can resolve them. One might think that university admissions decisions would fit easily into this category, given that the window for reapplying or transferring is narrow. The Court, however, rejected that argument in a 1974 per curiam decision (DeFunis v. Odegaard). The Court could potentially distinguish that case because its plaintiff had already been admitted, pursuant to a trial-court injunction, to the law school he sued. That wasn’t the basis for that case’s holding on the “capable of repetition, yet evading review” exception, but it nevertheless might make DeFunis a weaker precedent for Fisher’s circumstances. DeFunis isn’t the only barrier to this strategy, though: the Court would also have to explain why lawsuits like Fisher’s “evade review” when other plaintiffs can challenge admissions policies by bringing class actions or by alleging more viable damage claims. Fisher has not made an argument on this issue, but, again, the Court can go there if it wants. If it does and ensconces admissions challenges in an exception to mootness, then Fisher’s requests for forward-looking injunctive relief reenter the picture.
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Texas’s argument that “Fisher’s petition is shot through with vehicle problems” was more than just bluster, but the Court was not persuaded. (A side note to the great majority of you who care more about the merits in this case than these procedural issues: the fact that the Court granted cert. in a procedurally awkward dispute worth only $100 might be some hint at how eager the Court is to address these merits.) If Texas offers up the $100, the Court will need to explain why this remains an Article III case or controversy. Interestingly, the Justices who were probably the most keen to hear the merits of this case are the same Justices who are sticklers for standing. Let’s see what they come up with.