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Briefs Piling Up in Affirmative Action Case

Following an avalanche of briefs submitted to the Supreme Court last week, the stage is set for next term's blockbuster affirmative action case, Fisher v. University of Texas at Austin.

The case, which will be argued Oct. 10, is shaping up as largely a remake of the 2003 case of Grutter v. Bollinger, but with a few new twists. In the Grutter case, the Court upheld race-conscious admissions at the University of Michigan Law School, in furtherance of the university's "compelling interest" in diversity.

More than 70 amicus curiae briefs were filed by the Aug. 13 deadline in support of the similar Texas policy that was fashioned in the wake of Grutter.

Some of the major players are the same in both cases. Latham & Watkins' Maureen Mahoney, who defended Michigan's policy in 2003, is on the Texas brief as well, though the counsel of record is her successor as head of Latham's Supreme Court and appellate practice, Gregory Garre. Solicitor general under President George W. Bush, Garre lends the same weight to that side of the case that Mahoney did, as lawyers with Republican ties defending affirmative action.

(Both Garre and Wiley Rein partner Bert Rein, who will argue on behalf of the challengers to the Texas policy, will participate in a Sept. 13 panel discussion, sponsored by The National Law Journal, of the past and upcoming terms of the Supreme Court.)

The most obvious change this time around is that in 2003, the Bush administration sided with the challengers to the Michigan policy, while in the Texas case, the solicitor general is squarely on the side of the University of Texas.

Significantly, Solicitor General Donald Verrilli Jr. was joined on the government brief by Jeh Charles Johnson, general counsel of the Department of Defense, along with counterparts from the Departments of Education, Health and Human Services, Commerce and Labor – underscoring the importance the administration places on affirmative action programs across the spectrum of national life.

The Defense Department's prominent role was also a sign of the importance the administration is placing on the benefits of affirmative action to the military. In 2003, the so-called "military brief" on behalf of former top military officers played what many believe was a pivotal role in Michigan's victory, by stressing that student diversity at state universities is crucial to development of a diverse officer corps in the armed services. Retired Justice John Paul Stevens has spoken repeatedly of the persuasive impact of the brief.

The U.S. government brief in the upcoming Texas case emphasizes that point again, and a similar brief by high-ranked former military leaders has been filed in Fisher too. Former Joint Chiefs of Staff chairman Colin Powell is one of the signers of the pro-Texas brief; he was secretary of state during Grutter.

But a new author has crafted the military brief in the Texas case: Philippa Scarlett, a litigation partner at Kirkland & Ellis and a former clerk to Justice Stephen Breyer.

During the Grutter oral argument and afterward, justices cited the "Carter Phillips brief," a reference to the Sidley Austin partner who was on the military brief – though his Sidley partner Virginia Seitz was actually counsel of record. Seitz is now assistant attorney general for the office of legal counsel, and Phillips was approached to write a different brief in the Texas case – this time for Yale Law School Dean Robert Post and Harvard Law School Dean Martha Minow. Post clerked at the high court the same year Phillips did, and Minow is the daughter of legendary lawyer Newton Minow, senior counsel at Phillips' firm. "It was easy to say yes," said Phillips.

New military brief

Kirkland's Scarlett said she was "excited and honored to add the voices of this amazing group of distinguished military leaders." While her brief covers the same ground as the Grutter brief did, it focuses on the different features of the

Texas policy: a combination of admitting the top 10 percent of all high school classes in the state, and a holistic assessment of candidates that takes race and background into account.

"We want to remind the Court, as the Grutter military brief foreshadowed and as the Grutter Court itself recognized, that a class-rank cut-off approach to admissions by itself will not work," Scarlett said. "We want to tell the Court why limited consideration of race in admissions, as a part of individualized, holistic review of applicants, is critical even side-by-side with presumably race-neutral policies."

But the overall aim of the brief is the same as before, she said. "One of our primary interests was to emphasize that this long-held military view-- that a highly qualified and diverse military leadership is critical to military effectiveness-- is still strongly held, including by more contemporary military leaders."

Senior officers are opposed

That military argument in favor of affirmative action has been parried in the Texas case by the other side, in a brief on behalf of Rep. Allen West, R-Fla., a retired Army lieutenant colonel. The author of the brief is R. Lawrence Purdy, of counsel at the Minneapolis firm Maslon Edelman Borman & Brand and one of the lawyers for the plaintiffs challenging the Michigan policy in Grutter in 2003.

"I have great respect for these great men and patriots," Purdy said of the retired officers who filed the brief in favor of the Texas affirmative action policy. "But we feel it is absolutely poisonous and unconstitutional" to consider race in admissions, and "most senior officers oppose these policies." Since the late 1940s when President Harry Truman desegregated the military, Purdy said, "the military has done an exemplary job of living up to the idea that race doesn't matter."

Purdy said he did not try to enlist retired military leaders to sign the brief by name. "It's not a question of who has the most officers."

The briefing brought other newcomers to the legal debate, including the National Association of Basketball Coaches and a spectrum of religious organizations. Both endorse the Texas policy. Among the 17 amicus briefs filed on the other side in May are those by the Cato Institute and the Asian-American Legal Foundation. That brief argues that Asian-Americans are harmed, not helped by affirmative action policies because they are viewed as overrepresented and therefore less worthy of being admitted.

Sweatt family brief

One of the most powerful briefs on either side highlights the role of the University of Texas in the long legal fight against discrimination in education.

Four years before the high court issued Brown v. Board of Education in 1954, the justices ruled in Sweatt v. Painter that the law school at the University of Texas could not deny admission to Heman Sweatt solely because of "the fact that he is a negro." Allan Van Fleet of McDermott Will & Emery wrote a brief in the Fisher case on behalf of Sweatt's daughter and nephews. Van Fleet had immersed himself in the history of Texas school segregation in a prior case, and the University of Texas asked him to work with the Sweatt family to draft a brief in support of its current affirmative action policy.

The brief is a narrative of Sweatt's struggle to survive in law school once he won the case, followed by a description of the persistent segregation and now re-segregation of public schools in Texas.

The Sweatt decision, Van Fleet says, marked the first time the court recognized the compelling but intangible importance of diversity in higher education. Van Fleet wanted to emphasize that point to the justices and to stress that the discrimination Sweatt faced is nothing like the limited use of race used now by the University of Texas to increase diversity in the student body. "No one today is excluded because of his race," he said.

"I hope the justices are of an age that they at least studied the Sweatt case," said Van Fleet. "But I am not sure their clerks will have read much about it. I hope the clerks will read the brief."