Fisher v. Texas: An Important Affirmative Action Case Pending in the Supreme Court in Which the Challengers May Have Blown It

A pending case that should be of interest to all folks in higher education, and especially those of us who teach law students how to draft pleadings, is Fisher v. University of Texas. The case involves a challenge to the University of Texas’s ability to use race in admissions as part of its affirmative action program, and is now before the U.S. Supreme Court.  I have written two earlier online essays on various aspects of the case for Justia.com; they are viewable here and here.

Whether the Supreme Court can and will take the case is turning out to be a complicated question.  The plaintiff (one of two, but now the only one left) applied to UT as a freshman and was denied admission.   She filed suit in federal court challenging UT's race-based admissions criteria, but at the same time enrolled in another college. In her Complaint (her request for relief), she asked for a declaration that she was entitled to have her UT application considered without regard to race, an injunction (a court order) directing UT to consider admitting her without regard to race (on the premise that she would transfer to UT), and money damages "in the form of" a refund of her admissions application fee (on the theory that her application had not been processed fairly, so that she was entitled to her money back.)

She lost in the trial court, and then twice in the Fifth Circuit Court of Appeals, first in front of a three-judge panel in January 2011, and then this past summer when she (unsuccessfully) asked the Fifth Circuit as a whole (en banc) to review her case.  She then made a request for Supreme Court review.

But here's the (or at least a) big wrinkle.  Since it took a while for her case to be resolved by the Fifth Circuit, she's no longer interested in transferring to UT (she's already a senior at her college).  So her claims for declaratory and injunctive relief are no longer live; in legal parlance they are moot.  But what about her small monetary refund claim (around $100)?

In opposing Supreme Court review last week, UT told the Court that if the Court grants review, UT will offer to refund plaintiff the $100, thereby mooting the damage claim too!  So, argues UT, it would be a waste of time for the Court to grant review, only to have to dismiss the case before deciding it.

A very interesting argument.  There is no clear Supreme Court authority that UT cites that says a mere offer to give a plaintiff what she seeks will moot a case at a late date even if the plaintiff turns the offer down.  In other words, UT cites no case that says mere "tender" by a defendant is enough to moot a damage claim late in the day.  (And it is somewhat odd that UT, if it feels this way, didn't make a "tender" earlier this year when plaintiffs sought en banc review in the Fifth Circuit; the injunctive claims were moot then too, since plaintiffs were already in their junior years and would no longer be interested in transfer.  Also, it is interesting that UT says it will tender if review is granted, rather than simply making the tender right now.)

Nonetheless, as a matter of mootness logic, the tender argument has some force.  If a defendant is willing to give the plaintiff all she currently asks for, why should a court still have the power to step in?

One possible response for plaintiff would be to say she now wants to amend the Complaint to add additional damages for not having been able to attend UT (lost earnings due to a slightly inferior education, etc.).  After all, she might say, the fact that she asked for an injunction shows that what she wanted all along was the value of the UT experience, and if she can no longer get that in-kind, money damages are the next best thing.

All that may be true, but the district court (where such decisions must be made) has not yet permitted her to amend the Complaint to add damages in light of UT's promised tender.  As the case exists before the Supreme Court (and as the Court observed in a decision two years ago, Alvarez), the Complaint is unamended and therefore arguably moot.  (Maybe Alvarez is different because there the original Complaint sought no damages, whereas here it sought small but now insufficient damages.  But should that make a difference?)

Or perhaps plaintiff can argue that the catchall "all other relief [the] [c]ourt finds appropriate and just" language at the end of her Complaint can be read to include additional damages beyond a refund.  But I don't know that such boilerplate language (that exists in virtually all complaints) can do the work.  If it could, then virtually no case could ever become moot, because some, unspecified, damages are always conceivable even if they are not requested.

We'll see what happens.  I won't be too surprised either way the Court goes; if it wants to use this case to revisit whether race can be used in higher education admissions (which it last addressed in 2003 in cased involving the University of Michigan), it might be able to find a way.  But it won't be easy.

In the meantime, I hope we can all agree that plaintiffs' Complaint should have been written so as not to limit the damages to a refund, but rather to include the value of a UT education should injunctive relief not be granted.  Instead of saying damages "in the form of" a refund, the Complaint should and could have said damages "including but not limited to" a refund . . .   Those five words should be the first ones taught in law school.