Two months ago, I wrote about the procedural defects I saw in the Texas affirmative action case Fisher v. University of Texas. At the time, I made a prediction:
It is perhaps no surprise that the cert. petition makes no mention of these shortcomings, but I expect to see them in lurid detail in the University’s brief in opposition. Stay tuned.
It’s time for an update. Texas filed its brief in opposition to certiorari today, and as Lyle Denniston reports for SCOTUSblog,
In replying to the Fisher challenge, the university’s lawyers mounted a sweeping attack on the “intractable” procedural defects they said permeated her case. . . . More than two-thirds of the 40-page filing is devoted to arguments that the case is too flawed to lead the Court into a new examination of the use of race in choosing college entrants.
There was one unanticipated detail in the filing: the university may be able to make the case go away for $100. Here’s Lyle again:
[T]he university said that [Fisher’s] claim for a refund of a $50 application fee and a $50 housing deposit are not enough to keep her case alive, since the university could simply make the case moot on that point by opting to refund the money even though the payments she made were not considered refundable. The university would provide such a refund, its brief said, “rather than incur the massive expenses of litigating this case to conclusion in this Court.”
And lest you think the more conservative justices will simply brush off Texas’s brief, I should point out that a former Scalia clerk (Texas Solicitor General Jonathan Mitchell) and a former Thomas clerk (former Texas Solicitor General Jim Ho) helped write it.
An excerpt from the brief’s introduction follows, after the jump.
Fisher’s petition is shot through with vehicle problems—all caused by her own decisions to sue as an individual plaintiff, and to demand relief that cannot redress the past injuries of which she complains. Fisher is scheduled to graduate from Louisiana State University in May 2012; at this point she cannot possibly assert an intent to apply to UT-Austin as a freshman or transfer student. She therefore lacks the personal stake needed to pursue an injunctive remedy, and her failure to sue as a class representative means that she cannot maintain an Article III case or controversy over her claims for prospective relief. Only a claim for retrospective relief could preserve a case or controversy in this Court.
Yet Fisher’s complaint does not request nominal damages, nor does it seek any damages that could be traced to UT-Austin’s rejection of her application, such as lost earning potential or higher tuition expenses. Fisher’s sole demand for retrospective relief is for a refund of her $50 application fee and a $50 housing deposit that she paid the University—that is all that is at stake in her petition. But neither the application fee nor the housing deposit represents an “injury” caused by UT-Austin’s admissions policies. Nor could refunding those fees possibly redress the denial-of-equal-treatment injury that Fisher alleges. Even if Fisher had been accepted (or rejected) by UT-Austin under race-neutral admissions, she still would be out-of-pocket for the nonrefundable application fee and housing deposit. And even if this Court were to think that Fisher could salvage an Article III case or controversy out of this situation, UT-Austin could moot these proceedings beyond any doubt simply by tendering $100 to Fisher. It would not be prudent to grant certiorari to resolve a $100 dispute, when a litigant in UT-Austin’s position could settle and moot the case rather than incur the massive expenses of litigating this case to conclusion in this Court.