Fisher v. University of Texas (on behalf of the Civil Rights Clinic)

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10In fact, the Chevron doctrine did not originate in,nor has it been exclusively reserved for, the expertjudgments <strong>of</strong> federal administrative actors. SeeEdwards’ Lessee v. Darby, 25 U.S. 206 (1827). Rather,“federal courts routinely defer to all sorts <strong>of</strong> bodies:administrative agencies, prison <strong>of</strong>ficials, expert witnesses,military <strong>of</strong>ficials, state administrators, andthe like.” Neal Kumar Katyal, The Promise andPrecondition <strong>of</strong> Educational Autonomy, 31 HastingsConst. L. Q. 557, 563 (2004). In Darby, one <strong>of</strong> theearlier cases <strong>of</strong> judicial deference, the Court wasasked to nullify a land tract survey made by delegatedcommissioners <strong>of</strong> the state <strong>of</strong> North Carolina.The Court, recognizing a substantial level <strong>of</strong> deferenceto be given to the commissioners’ decisions,explained that the “construction <strong>of</strong> those who werecalled upon to act under the law, and were appointedto carry its provisions into effect, is entitled to verygreat respect.” Id. at 210. The Court agreed with theclaimant in that the commissioners were not grantedthe express authority to survey as they did, but nonethelessheld that they retained an implied authorityflowing from the statute that covered the scope <strong>of</strong>their action. Id. at 209. The Court further indicatedthat deference was warranted because the statelegislature enacted an additional statute, subsequentto the challenged action, expressly permitting thestate actor to act as he did. Id. at 210. The Courtconcluded, “[i]t was a public act, done by a publicauthorized agent <strong>of</strong> the government, and afterwardsrecognized [sic] by the government itself. None butthe government itself ought, therefore, to be permittedto call it in question.” Id. at 211.
11The deference provided in Darby foreshadowedwhat was to come in Chevron. The Court has repeatedlymade clear that courts should not be in the business<strong>of</strong> substituting their own judgments for those <strong>of</strong>experts rendered in good faith when sensible mindscan reasonably differ about the wisdom <strong>of</strong> thoseexpert decisions. See, e.g. Lawton v. Steele, 152 U.S.133, 140 (1894) (holding state actors operating understate statute not liable for damage caused to plaintiffs’property stemming from a reasonable interpretation<strong>of</strong> their statutory authority); Pell v. Procunier,417 U.S. 817, 827 (1974) (explaining that decisions asto the restriction <strong>of</strong> inmate speech are “peculiarlywithin the province and pr<strong>of</strong>essional expertise <strong>of</strong> corrections<strong>of</strong>ficials, and, in the absence <strong>of</strong> substantialevidence in the record to indicate that the <strong>of</strong>ficialshave exaggerated their response to these considerations,courts should ordinarily defer to their expertjudgment”); Jones v. N. Carolina Prisoners’ LaborUnion, Inc., 433 U.S. 119, 126-30 (1977) (noting thatjudiciary is ill-equipped to properly handle the complexproblems <strong>of</strong> prison administration, and thuscourts must defer to the informed discretion <strong>of</strong> prison<strong>of</strong>ficials regarding the reasonableness <strong>of</strong> restrictionson inmate freedom).The point is not that a university, by virtue <strong>of</strong> itsacademic freedom and the expertise <strong>of</strong> its faculty andadministrators, is owed absolute deference withrespect to its admissions decisions. Rather, admissionsdecisions not only implicate First Amendmentconcerns, but also present complex expert subjectivejudgments about the role <strong>of</strong> a university and itsrelationship with the student body and the largercommunity. Therefore, when, as here, a universitytakes account <strong>of</strong> race as one in a series <strong>of</strong> factors todetermine the makeup <strong>of</strong> a student body consistent
Page 1 and 2: No. 11-345IN THESupreme Court <stro
Page 3 and 4: TABLE OF CONTENTSPageTABLE OF AUTHO
Page 5 and 6: iiiTABLE OF CONTENTS—ContinuedPag
Page 7 and 8: vTABLE OF AUTHORITIES—ContinuedPa
Page 9 and 10: INTEREST OF AMICI CURIAE 1Amici cur
Page 11 and 12: 3academic environment. At the same
Page 13 and 14: 5also Regents of U
Page 15 and 16: 7First Amendment Institutions: Some
Page 17: 9B. Academic Freedom is Also Ground
Page 21 and 22: 13defining diversity.” (opinion <
Page 23 and 24: 15II. THE COURT’S DECISIONS AFFOR
Page 25 and 26: 17Put simply, the Court’s deferen
Page 27 and 28: 19A. The Program May Not Set Aside
Page 29 and 30: 21C. Race May not be Used Mechanica
Page 31 and 32: 23versity’s educational mission,
Page 33 and 34: 25assumption, that they represent t
Page 35 and 36: 27A. The University</strong
Page 37 and 38: 29judgment, but instead undertook a
Page 39 and 40: 31Score (PAS). The essays are score
Page 41 and 42: 33Ironically, petitioner and her am
Page 43: 35teaching this generation

Fisher v. University of Texas (on behalf of the Civil Rights Clinic)

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