Damages in SCOTUS / UT Austin affirmative action case?
Fisher, a white applicant to UT Austin, sued the university for discrimination in 2012, alleging she was denied admission because of her race. UT claims race was not a consideration and that Fisher was not accepted because of mediocre academic performance, not because she was white.
The Supreme Court sent the case to the 5th Circuit Court of Appeals, which found there was nothing unconstitutional about UT’s affirmative action system. However in June 2015, SCOTUS announced it would rehear the case. A decision is expected to be made in June.
What exactly is Fisher suing for? The obvious answer is to have affirmative action repealed nationwide. Do damages have any role in this case? Here is what we know about any alleged damages:
The Daily Texan points us to the Fisher brief, that states the plaintiff is seeking the $100 application fee. The justices inquired if this was all the party is looking for, and the attorney said that “the damages we are seeking are broader than that.” He said that “by not getting accepted into UT, she had to choose her alternative school and be further away from home.” adding that “there is a significant difference in one’s earnings if you attend the University of Texas or not.”
Adam Chandler writes on the SCOTUS blog that “most of Fisher’s deficiencies stem from one surprising fact: all that’s at stake, aside from the future of affirmative action, is one hundred dollars.” He explains that Fisher’s claims were originally more ambitious, but she did not sue as part of a class action on behalf of future applicants.
Her claim to future damages for lost future income resulting from attending a ‘lesser’ university became irrelevant when at the beginning of the lawsuit, she enrolled at LSU and expressed no intent to reapply or transfer to UT Austin. “Those circumstances led the Fifth Circuit to declare that Fisher lacked standing to seek forward-looking relief, leaving only the one hundred dollars.”
Chandler explains that establishing Fisher’s claim to $100 in fees as damages she must have suffered: 1) a concrete, particularized “injury in fact”, 2) that bears a causal connection to the alleged misconduct and 3) that a favorable court decision is likely to redress. He argues that Fisher does not meet these requirements, and additionally, that Sovereign immunity bars states being sued for retrospective monetary relief.
Continue the conversation: Read Vikram David Amar’s thorough and thoughtful response to Chandler’s analysis here.
Ian Millhiser writes in his analysis of the alleged damages in this case that a plaintiff must argue they have an injury that can be redressed by a favorable decision, but that the $100 application fee is irrelevant to her claimed injury of not attending UT Austin. He writes “the $100 fee bears no relationship to this injury” and points out that she would have paid the application fee even if race had not been considered, and even if she had been admitted.
