SOURCE: Southeastern Legal Foundation

June 24, 2013 13:04 ET

SLF Amicus Brief: "Strict Scrutiny Standard Must Apply When Government Uses Race"

Race-Based School Admissions Require 'Strict Scrutiny': Fisher Case Likely to End UT-Austin Race-Based Admissions

ATLANTA, GA and WASHINGTON, DC--(Marketwired - June 24, 2013) - As the Supreme Court of the United States this morning announced its decision in the race-based public university constitutional challenge, Abigail Noel Fisher v. University of Texas at Austin, et al. (11-345), Southeastern Legal Foundation broke with many early analysts to say that, "Rather than a 'punt' back to the lower court, today's Supreme Court decision in Fisher affirms fairly well-settled law in the affirmative action arena that, when race is invoked as criteria in government decision-making like school admissions or public contracting, strict scrutiny applies -- and that's what the high court today said to the lower court."

Shannon Goessling, SLF executive director and chief legal counsel, as well as co-author of the SLF amicus brief in this case, said further, "The Supreme Court has considered dozens of constitutional challenges to race-based government programs over the past 30 years, and has pretty consistently held that the burden shifts to the government to show a fact-intensive, compelling interest and a narrowly tailored solution to address ongoing racial discrimination -- which means these constitutional cases are becoming well-settled as to how courts must apply the law when race is involved. The only 'punt' was the failure of the lower court to use the proper standard to examine this case, which has been corrected today by command of the Supreme Court."

The Supreme Court held in Fisher that the Fifth Circuit Court of Appeals failed to apply the strict scrutiny standard when it reviewed the district court's decision in the case, and that its decision is therefore "incorrect." The reversal and remand with instructions is patently clear for the Fifth Circuit -- follow the strict scrutiny and reach a "correct" result. Further, the high court held that its decisions in Bakke, Gratz and Grutter "...directly address the question considered here, are taken as given for purposes of deciding this case." In all these landmark cases, strict scrutiny was applied.

SLF has participated in more than a dozen landmark affirmative action and government contracting constitutional challenges before the U.S. Supreme Court since 1976.

"Strict scrutiny" is a legal term which means that the burden of evidence and legal proof shifts from the complaining party to the defendant -- in this case, the government agency -- to prove that its use of a constitutionally protected class like race is narrowly tailored to meet a compelling state interest. In nearly every case, the strict scrutiny standard has not been met by the government.

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