SOURCE: Judicial Watch

Judicial Watch

May 31, 2012 16:58 ET

Judicial Watch Files Amicus Curiae Brief With U.S. Supreme Court in Opposition to Race-Based Admission Policies at the University of Texas at Austin

University Admission Policies Result in 'Racial and Ethnic Stereotyping' and Violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution

WASHINGTON, DC--(Marketwire - May 31, 2012) - Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has filed an amicus curiae brief with the U.S. Supreme Court in support of Abigail Noel Fisher. The brief was filed jointly with the Allied Educational Foundation (AEF). The filing supports Fisher's claim that race-based admission policies of the University of Texas at Austin violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution (Abigail Noel Fisher, Petitioner v. University of Texas at Austin, et al., Respondents). Ms. Fisher was denied admission to the university in 2008.

According to the amicus curiae brief (filed on May 29, 2012):

Human race and ethnicity are inherent ambiguous social constructs that have no validity in science. Invoking race and ethnicity to promote diversity relies on racial and ethnic stereotyping of individuals' viewpoints, backgrounds, and experiences. Admission policies, such as the policy enacted by the University, which seek to classify applicants by crude, inherently ambiguous, and unsound racial and ethnic categories to promote diversity, but which instead promote racial and ethnic stereotyping, can never be narrowly tailored to promote a compelling government interest, and therefore cannot survive strict scrutiny.

Judicial Watch used the controversy surrounding Massachusetts Senate candidate Elizabeth Warren's claim that she is Native American to highlight the folly of taking in to account an applicant's race or ethnicity in pursuit of student diversity:

Based on nothing more than "family lore" and "high cheek bones," Ms. Warren claimed, perhaps quite sincerely, that she was 1/32nd Cherokee and therefore a Native American and a minority.

Under the University's policy, an applicant who similarly identified herself as an "American Indian" based on "family lore" and "high cheekbones" would gain a "plus" factor toward admission... Imagine a freshman class at the University comprised of 6,715 Elizabeth Warrens, all identical but for the difference in the race or ethnicity of a single great great-great grandparent. How much additional diversity would the University have achieved by taking the race and ethnicity of these students into account in the admissions process?

Judicial Watch further notes the university policy "lumps together" two of the most populous countries in the world, China and India, each with over 1 billion people a variety of languages, cultures and religions, under one race category, "Asian." "The term 'Asian' as anything other than a geographic reference is largely meaningless," Judicial Watch argues.

Judicial Watch concludes: "To fulfill the promise of the Equal Protection Clause, the Court should find that race and ethnicity can never be narrowly tailored to promote diversity in admissions policies and therefore cannot survive strict scrutiny," as the law requires.

Since 2005, the University of Texas at Austin has used race in its admissions process, purportedly to achieve greater diversity in its student body. Applicants to the University are currently required to complete and submit a standardized "Apply Texas" application, which requires applicants to identify themselves by race and state whether they are of "Hispanic or Latino" ethnicity.

"The admissions policies of the University of Texas at Austin are at odds with the Constitution and promote racial theories that have no basis in science," said Tom Fitton, president of Judicial Watch. "It's time for the Supreme Court to put an end to this unlawful practice."

In 2003, the Supreme Court ruled that race-based admissions policies at the University of Michigan School of Law were constitutional. That decision will be subjected to fresh scrutiny when the current Supreme Court considers the Fisher case during the nine month term that begins in October 2012. Justice Kagan recused herself from hearing the lawsuit because of her involvement with this case when she served as Obama's Solicitor General.

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