2016 SCOTUS: The Lawyers
Fisher v. University of Texas at Austin (Affirmative Action)
The Case:
In December, the Supreme Court heard oral arguments in Fisher v. University of Texas at Austin, a landmark challenge to
affirmative action at Texas’ flagship public university. The University of Texas is required to admit all high school seniors
who rank in the top 10 percent of their high school classes. Candidates for any remaining spots undergo a “holistic”
evaluation process in which race is among the considered factors..
Former University of Texas applicant Abigail Fisher contends that the school’s discriminatory admission policies led to her
rejection, even though her qualifications surpassed those of many admitted minority students. The university maintains a
program by which the top 10 percent of students in each public graduating class are granted automatic admission; Fisher
argues that this is enough to ensure diversity. (She narrowly missed the cut at Stephen F. Austin High School, finishing
82nd out of 674.)
The Question:
Fisher argues the 14th Amendment’s the Equal Protection Clause prohibits the school from considering race in any manner
as part of the admissions process.
This case concerns the University of Texas use race or ethnicity as a part of their admissions policy.
What precedents already are set regarding the above issue?
Here are some of the precedent cases and case law you must consider:
14th Amendment USC
Article III USC
Texas House Bill 588
Ricci v. DeStefano (2009)
Farmer v. Ramsay (1998)
Grutter v. Bollinger (2003)
Regents of the University of California v. Bakke
Sweezy v. New Hampshire
Gratz v. Bollinger (2003)
Adarand Constructors v. Pena (1995)
Your research can go outside this list, you are encouraged to refer to the Table of Authorities in the submitted briefs.
HOWEVER, these cases MUST be mentioned in your brief and your oral arguments.
 Your primary resources will be www.scotusblog.com and www.oyez.org. Search the case name. Here you will find all
briefs filed in the case thus far, lower courts opinions, and links to media coverage. You’ll find far more than you would
ever care to read, so have a plan. http://www.scotusblog.com/case-files/cases/elonis-v-united-states/
Good sources for research:
www.oyez.org (provides good information on Judicial philosophy and case summaries)
www.wikipedia.org (often has good summaries of cases)
Chapters 4 and 5 in your textbook!
http://www.law.cornell.edu/supct/ (has good information on historical cases)
Attorneys
The Task:
1. Research! Each team will prepare a written brief (see format at end) that contains relevant factual data, a
synthesis of precedent decisions in this case, and responses to the questions in the case.
Remember…
o For the precedent cases – what about this precedent is similar to my case? What about this case is different
from my case? Then…how does that become relevant to what I want to argue?
o The key of arguing constitutionality is to use evidence that applies a precedent from a previous case to the
actions of the group in the current case - take a key facts from a relevant precedent case and show how the
actions of the individual in YOUR CASE are similar and therefore FIT the precedent (or is different and
therefore SHOULDN’T FIT that precedent)
o Want to check yourself? *star* the precedent case, draw a line to where you show the individual in this
case (the one you are deciding right now) meeting/not meeting the characteristics from the precedent and
then underline your conclusion based on the precedent and evidence. The precedent is irrelevant if there is
no tie-in to the action of the individual being tried in the current case.
2. Oral Argument (Monday 2/8): Each side will have 20 minutes to present oral argument. Petitioners should reserve
a couple of those minutes for rebuttal after the Respondent’s presentation. Justices will ask questions as you
present. After the close of oral argument, justices will deliberate before the class before making their ruling.
You need to become experts in:
 The facts of the case
 The Constitution and the Bill of Rights
 Precedent Cases
 The opinion of the lower courts (even dissenting if it helps you)
 Making legal arguments
 Writing and interpreting legal opinions
3. On Monday 2/8, you will be required to submit a Brief of your argument for the justices. You will need copies, one
for each justice. I can help you here.

“There are two key parts to the brief. The first is the Statement or Summation of the Facts which you want to
write such that it runs in your favor. Once you've written it, you should have someone else on your attorney
team read it and if they don't think you win just based on that, you need to go back and write it again. You also
need to make sure you know the facts backwards and front. The questions asked by the justices should revolve
around the facts.

The second part is evidence. There are three big sources of evidence you should be citing: the Constitution,
statutes (state and federal) and the common law (previous decisions). When working with previous decisions
they should look for the "Holding" of the case. He “Holding” is a brief statement about how a previous case was
settled. EXAMPLE: The holding in the case Texas v. Johnson was that the court held flag burning as a
constitutionally protected act under the 1st Amendment.
Sometimes the Court is giving you signs that they disagree with you. When that happens, remember that we call it an
argument for a reason—argue with them. Be respectful, but don’t let them get away with just dropping in their opinions
without taking them up. Sometimes the Court is giving you signs that they agree with you. When that happens, push
them! You can successfully move them from a moderately favorable position to a broad, sweeping favorable position on
the strength of your words.
Last bit of advice for the argument, you need to tell a story and it needs to be understandable. Don’t use fancy legal
jargon you don’t understand and don’t make your argument sound like a laundry list of cases and laws. Keep them
entertained, give them a story that will stick with them and be passionate for your side of the law without being too
inflammatory about the other side.”
THESE ITEMS MUST BE IN YOUR BRIEF
A. PERSUASIVENESS
 Is maximum effective use made of the strongest points?
 Are the arguments presented in the most persuasive sequence?
 Are the arguments of the opposing side anticipated and minimized by proper selection of available
arguments?
B. ARGUMENT SUPPORT
 Is the best case law authority used? Are the strongest policy arguments made and emphasized?
C. APPLICATION OF LAW TO FACTS
 Are the arguments and authorities effectively tied into the facts of the case?
 Are cases relied on properly analyzed and used to support arguments or show similarity to the facts of the
case at bar?
 Is each step of the argument logical in its welding of facts, law, and policy?
D. NOTE THE FOLLOWING IN YOUR ARGUMENT:
 What do the following say? Make sure you address these in your argument. It will help you out
immensely!!
o Text
o History
o Purpose
o Consequences
****************************Thoughts, Notes, Doodles******************************
EXAMPLE ONLY!!! –FORMAT for Brief
No. 08-1448
================================================================
In The
Supreme Court of the United States
--------------------------------- --------------------------------Case Name,
Petitioner,
v.
Case Name
Respondents.
--------------------------------- --------------------------------CHOOSE ONE:
PETITIONERS’ BRIEF
or
RESPONDANTS’ BRIEF
or
--------------------------------- --------------------------------[Names of Group Members Go Here]
Petitioners / Respondents:
Intro: Explain briefly why the Supreme Court should reverse the decision of the lower court, invoke precedent, and dismiss Respondent’s argument
I.
Part One: The relevant factual history of the case. This is not necessarily just what I gave you. This is where your additional research comes in to
clarify what YOUR SIDE sees as especially relevant factual history. (see Advice from Expert above)
II.
Part Two: Your argument, the Constitutional interpretation you hope the Court will make, and a refutation of the likely arguments of opposing
counsel. For this section, make your point and then back it up with cases. This is a constitutional argument, not just a logical argument.