Enough is enough: Fisher v. University of Texas

How many bites does Abigail Fisher get at this apple? Fisher was an applicant who sued the University of Texas at Austin in 2008 after she was denied admission both on the automatic admissions policy (the Percentage Plan) and by the holistic review process. She claimed her denial was due to her being white. In 2013, the Supreme Court held that the Fifth Circuit had erred when it did not apply “strict scrutiny” in its review. Upon remand, in July 2014, a three-judge panel of the Circuit carefully reviewed and upheld (2 to 1) the University’s policies. Fisher’s appeal of that ruling has been granted cert and will be heard again by the Court.

Michael A. Olivas

Fisher was not eligible for the Percentage Plan because she was not a good enough high school student to qualify. She was not admitted through the second review accorded many UT-Austin applicants. She has lost at each turn, somehow seeking extra opportunities to prove she was denied admission because of her race. Now, the Supreme Court has decided to accept and encourage yet another attempt at the prize, even though she graduated from another college and is not eligible as the full-time first-time freshman she would have been had her record been better.

In short, UT-Austin cannot be the only college in the country to which Grutter v. Bollinger (the 2003 case which allowed the use of affirmative action in a modest fashion, subject to state laws and institutional policies) does not apply. They have been both fair and transparent, and Fisher has not squarely challenged the Percentage Plan. But UT’s use of this race neutral plan—mandated by state law—does not mean she should be allowed to challenge a lawful affirmative action plan. SCOTUS cannot keep sending out mixed signals about the viability of an admissions process that was found to be constitutional. And when the conservative Fifth Circuit has determined the plan upon remand was constitutional, that should be the end of it.

If the news that the former UT-Austin president exercised political judgments in some admissions has caused the Court pause, they had better steel themselves for dozens of such cases, given the widespread use of such discretionary admissions. And in Texas, I think I am likely correct when I guess that the overwhelming number of such requests and decisions were on behalf of Anglo students.

One of the last bastions of white supremacy is undeserving plaintiffs challenging laws that they think disadvantage them. Even under the race-neutral Percentage Plan, which I helped draft, whites constitute more than half the recipients in a state where white high school graduates are only 30% of the total. Where is the unfairness? She and her legal team should quit wasting the Court’s time, and the Court should stop encouraging rear guard actions such as Fisher’s. Such a challenge is waving a confederate flag long after it should have been retired.

Michael A. Olivas is the William B. Bates Distinguished Chair of Law at the University of Houston and the director of the Institute for Higher Education Law and Governance. His most recent book, Suing Alma Mater: Higher Education and the Courts, was published by Johns Hopkins. It was chosen as the 2014 winner of the Steven S. Goldberg Award for Distinguished Scholarship in Education Law, given annually by the Education Law Association “in recognition of an outstanding article, book, book chapter, or other form of scholarly legal writing in the field of education law.” 

SCOTUS, same-sex marriage, and Christian colleges

Guest post by Michael A. Olivas

Conservative religious groups have shown concern over the Supreme Court decision in Obergefell v. Hodges, a case that has resolved the question of whether the U.S. Constitution establishes a right to same-sex marriage.  They fear that their current practices and student codes might run afoul of the public policy theory from Bob Jones University v. United States, and that the Internal Revenue Service will disallow their tax exemptions. If this did occur, then the colleges would have a genuine test of their core principles, and if they do not comport with the “public policy” requirement for tax exemption, they should render unto Caesar or surrender the public largesse that arises from tax exempt status.

Michael A. Olivas

The sky is not falling, and just as segregated schools have learned to live with students of color when they banned them before Brown, and just like men’s public colleges have thrived with the admission of women, so will these colleges—whose beliefs were no less well established than those of the conservative Christian outliers—live with this new constitutional reality and public policy. Schools should not act as parents and censor their students’ personal choices, especially ones that are legal and have no bearing upon student fitness. There will be exceptions, depending upon the state and status of the school, where they can ban or regulate otherwise-legal behavior, such as drinking on campus or engaging in smoking in their rooms, but we will all find a way to cope with these core principles, maintain our appropriate standards, and educate our students. We should embrace the growing freedoms and opportunities.

I attended Catholic schools, colleges, and law school virtually all my life, and studied for eight years in Catholic seminaries. Yet I do not believe that religious colleges can be safe harbors against properties that are in accord with public policy and Constitutional protection. Indeed, they cannot have it both ways. Their most principled actions may be to surrender the oppressive yoke they feel robs them of their privilege, and surrender their tax exemption. They hold the true keys to their own principled way.

Michael A. Olivas is the William B. Bates Distinguished Chair of Law at the University of Houston and the director of the Institute for Higher Education Law and Governance. His most recent book, Suing Alma Mater: Higher Education and the Courts, published by Johns Hopkins, was chosen as the 2014 winner of the Steven S. Goldberg Award for Distinguished Scholarship in Education Law.

 

The consequence of patents on BRCA genes

Guest post by Sue Friedman

On April 15, 2013, the U.S. Supreme Court heard arguments on whether Myriad Genetics’ patents on the BRCA genes, which are associated with hereditary breast and ovarian cancer, should be upheld. This case culminates a four-year legal tug-of-war between Myriad Genetics & Laboratories and a long list of individual, advocacy, and health care professional groups represented by the American Civil Liberties Union (ACLU) . The plaintiffs agree that regulations allowing exclusive gene patents negatively affect access to care and research.

I was fortunate when I was first tested for a BRCA mutation in 1998: my testing costs were covered by my health insurance. Although I was initially tested without genetic counseling, I eventually went to a large cancer center for a second opinion, met with a genetics expert, and gained access to up-to-date, credible information. It wasn’t until I started FORCE  (Facing Our Risk of Cancer Empowered) that the deeper implications of patenting the BRCA genes became apparent to me.

In the Family, a 2009 documentary by producer Joanna Rudnick, highlights some negative consequences of Myriad’s gene patents. The film includes eye-opening interviews with Dr. Mark Skolnick, Myriad’s founder, and Dr. Mary-Claire King, who is credited with locating the BRCA gene. King’s research proved the existence of hereditary breast cancer gene mutations and laid groundwork that sent laboratories racing to be the first to isolate and clone the gene for genetic testing.

Rudnick questions how a gene—a product of nature—can be patented, stating, “It’s like patenting your thumb.” Skolnick replies by comparing Myriad’s gene patents to patents for iPods, telephones, and computers, cavalierly asserting, “I think the single greatest inventive thing I did was to create Myriad. We did it to win the race . . . and we won.” A recent article on NOVA Next highlights just how narrowly that race was won. Although a laboratory in the United Kingdom had already sequenced the BRCA2 gene, Myriad published and applied for a patent less than 24 hours before the British scientists could publish their manuscript. Had the British team’s findings been published just a day earlier, Myriad’s effort to patent the BRCA2 gene would have probably failed.

Rudnick asks Dr. Skolnick point-blank why the cost of BRCA testing continues to increase, to which he replies, “I think there’s a point at which we have to start looking at decreasing the cost of the test.” That decrease has never been realized. Four years later, BRCA testing is more expensive—Myriad charges $3,500—even though technology has reduced the cost of sequencing DNA. The February 6, 2013 edition of the Salt Lake Tribune reported that “Myriad projects full-year 2013 revenue will fall between $575 and $585 million . . . a 16 to 18 percent increase over fiscal 2012.”

Dr. King’s philosophy regarding the commerciality of gene patents starkly contrasts with Skolnick’s. “The critical thing about the patents we hold is that none of them are exclusively licensed. They are completely open for anyone to use for research purposes, and any company that wishes to license them can for a trivial amount of money,” she says. King’s last royalty check amounted to $2.73. It’s not difficult to imagine how different BRCA testing might be had King won the race to sequence the BRCA genes.

In the interview, Skolnick defends Myriad’s profits by saying “If we make this huge . . . investment in educating the market don’t we have a right to deliver the test?” Skolnick continues, “All I know is that doctors were not prepared to do this. We had to teach doctors.” In 2008 and again in 2009 FORCE testified to the Secretary’s Advisory Committee on Genetics Health and Society, expressing both our general concerns regarding direct-to-consumer marketing of genetic tests and our specific concerns about Myriad’s marketing practices, which encourage BRCA testing without prior genetic counseling from qualified experts. FORCE has documented and reported our concerns about Myriad’s methods of marketing BRCA testing, which we feel are harmful and misleading to the health care community and members of the HBOC community. We also concur with the ACLU that exclusive gene patents negatively affect access to care and innovation in research, as illustrated by our testimony to the United States Patent and Trademark Office.

The SCOTUS decision is critically important for anyone who is concerned specifically with hereditary disease. FORCE has filed an Amicus brief on behalf of plaintiffs in advance of the hearing. The Myriad case is just one example of how exclusive patents on genes can hurt consumers. Gene patents are a universal issue that ultimately affects all of us. Even if hereditary cancer does not run in your family, chances are that you have inherited a genetic predisposition to some disease. Imagine if a company were given exclusive control over all testing and research for a disease that runs in your family.

Early media reports indicated that SCOTUS appeared skeptical of the validity of gene patents and may rule in favor of the plaintiffs. A ruling is expected by the summer. In the meantime, FORCE will continue to speak out and advocate on this important issue and others that impact the community we serve. I strongly encourage people to become informed about the issue and to take the time to voice their opinion.

Sue Friedman, D.V.M., is the founder and executive director of Facing Our Risk of Cancer Empowered and coauthor of Confronting Hereditary Breast and Ovarian Cancer: Identify Your Risk, Understand Your Options, Change Your Destiny.