Fisher v. University of Texas at Austin
Decided: June 24,
Public colleges and universities in the United States use
a variety of factors to determine which students will be accepted. They might
consider applicants’ grades, standardized test scores, where they live, their
community service, and their athletic or musical ability. Universities often
want a diverse student body, so they might look to accept students with
different academic interests, talents, and backgrounds. Sometimes, universities
also consider an applicant’s race or ethnicity when deciding whether to accept
him or her.
Most people agree that the consideration of most of these
factors is acceptable. However, there is intense disagreement regarding the
consideration of race in the application process. The practice of making a
conscious effort to enroll more minority applicants is called affirmative
action, and some people think that it violates the U.S. Constitution. The
Fourteenth Amendment says, in part, that states cannot “deny to any person … the equal protection of the laws.” Therefore,
any government action—such as the admissions process at public colleges and
universities—that treats people differently based on their race may violate the
Equal Protection Clause.
When ruling on laws that treat people differently because
of their race, courts require the government to justify the use of race in the
following way. The racial classification
must serve a compelling (that is, very important) government interest and be
“narrowly tailored” to achieve that interest. “Narrowly tailored” is a complicated legal concept. It means that the law or action must be
extremely well designed to achieve a specific goal, and must minimize any
interference with the rights of others. Typically, it is difficult for the government to justify using a racial
Some supporters of affirmative action argue that
race-conscious admissions are necessary because they help to correct a long
history of racism and discrimination in America. Opponents often argue that the
best way to correct a history of discrimination is to make all admissions
decisions without looking at race. The Supreme Court has ruled that some
affirmative action programs are acceptable because public universities gain
important educational benefits by creating a diverse student body.
This case is about whether the University of
Texas-Austin’s admission policies violate the Fourteenth Amendment and its
guarantee of equal protection.
The University of Texas-Austin accepts many students from
Texas and some from outside Texas. The majority of freshmen applicants are
admitted under the state’s “top-10%” rule. This rule automatically admits those
Texas high school students who finish at the top of their high school class. In
2008, students who finished in the top 10% of their high school were automatically
admitted to UT-Austin. That group made up 81% of the freshman class. The rest
of the spots in the freshman class went to general applicants: students from
Texas who were not in the top 10% of their high schools and students from
These general applicants are each given scores based on
academics and personal achievement. The score for personal achievement is based
on two essays and six additional factors. The essays are graded by readers
unaware of the applicant’s race or other identifying information. The other
factors are equally weighted. They include leadership potential,
extracurricular activities, honors and awards, work experience, community
service, and special circumstances. The “special circumstances” factor includes
the applicant’s race.
Abigail Fisher is a white female who applied to UT-Austin
in 2008. When Fisher was not admitted, she sued the school, arguing that she
was being discriminated against due to her race. As evidence, she argued that
her academic record was superior to many minority students who were admitted in
2008. Fisher argued that the school got enough diversity from the top 10%
program, and therefore additional affirmative action measures were
The U.S. District Court ruled against Fisher, saying that
there was no Equal Protection Clause violation. The Fifth Circuit Court of
Appeals upheld this decision.
Does UT-Austin’s consideration
of race in undergraduate admissions violate the Equal Protection Clause of the
Clauses and Precedents
U.S. Constitution, Fourteenth Amendment
“No State shall…deny to any person within its jurisdiction the equal
protection of the laws.”
Regents of the University of California v.
The University of California at Davis Medical School had an admissions
procedure that reserved 16 spots for minority applicants. Minority applicants
were placed on a special admissions track and scored only against each other
rather than the entire pool. The Court ruled that this program was a quota and
violated the Equal Protection Clause of the Fourteenth Amendment. However, it
said that the attainment of a diverse student body would be an acceptably
compelling interest to justify the use of race in admissions if race were
considered merely a “plus” factor that might tip the scales in a close case.
Gratz v. Bollinger (2003)
Jennifer Gratz and Patrick Hamacher, both of whom were white, applied to
the University of Michigan’s undergraduate program and were not admitted. The
admissions office used a 150 point ranking system that took into account
grades, high school reputation, high school curriculum difficulty, alumni
relationships, and “unusual circumstances” factors such as race and
socio-economic status. Being of a racial minority was worth 20 points,
regardless of other factors. The Court
found that this point system was not narrowly tailored, and therefore violated
the Fourteenth Amendment’s Equal Protection Clause.
Grutter v. Bollinger (2003)
Law school applicants challenged the race-conscious admissions policy at
the University of Michigan Law School, which considered a student’s race as
part of a holistic (whole-person) application process. The Supreme Court
allowed the policy to remain because the law school had a compelling interest
in attaining a diverse student body, and because the policy was specifically
written to serve that interest by including race merely as a “potential ‘plus’
Arguments for Fisher
96% of the African-American and Hispanic students from Texas who enrolled at
UT-Austin in 2008 were admitted using race-neutral entrance criteria. This
shows that diversity can be created without using racially biased admissions
University does not use race simply as a “plus” factor. For the students who
were admitted outside the Top 10% system in 2009, African-American
students had an average SAT score that was 390 points below the average score
for white students.
Accepting students who would not have been
admitted if it were not for their race increases their odds for failure. It is
unfair to accept students who don’t have the test scores and academic
preparation to succeed at the university. For example, between 2001 and 2006, 60% of the African-American students
at the University of Michigan Law School were in the bottom 10% of their
This policy harms minority students who are
admitted. Students with weaker scores at any university are more likely to abandon
more difficult majors such as science and math.
The decision in Grutter should be overturned. The “holistic” admissions standard allowed by Grutter opens the doors for systemic abuse. A university could
unlawfully deny admissions to certain groups of people and excuse it by saying
they were conducting a “holistic” review.
The precedent of Grutter makes it clear that the use of race as a “plus factor” in
college admissions is constitutional. UT-Austin is doing nothing more than what
was approved by the Supreme Court in 2003. The Court is bound by its past
precedent to find Texas’s admissions policies to be constitutional.
not give any applicant an automatic advantage in admissions. Race is only
considered “in conjunction with an applicant’s demonstrated sense of cultural
awareness.” This means that the “race” factor might benefit “any applicant (even non-minorities)”
because it is analyzed in context.
Student body diversity is a compelling
government interest, as the Court said in Grutter.
Studies show that increased diversity promotes cross-racial understanding, increases civic engagement, and enhances
leadership skills for every student on campus - not just minorities.
Minority students admitted to competitive colleges
through a race-conscious process have higher graduation rates than those at
less competitive colleges and universities, according to a 2008 study. This
effect contradicts what one would expect if affirmative action were harming
minority students or sending them to schools for which they are not qualified.
The top 10% law is very rigid, and the
University needs to be able to make decisions about how best to assemble its
student body. No college should be expected to select all of its students using
only their reported class rank. There are many ways to measure diversity, and
race is one out of many diversity indicators that the University uses.
The Supreme Court did not decide whether the Univeristy of
Texas-Austin’s admissions program violated the Constitution. Instead, the
majority opinion reviewed the rules for determining whether such an admissions
program is constitutional or not, and told the lower court to take another look
at the case. This decision was 7-1, with
Justice Kagan taking no part in hearing or deciding it. Justice Kennedy wrote
for the majority, and was joined by the Chief Justice, and Justices Scalia,
Thomas, Breyer, Alito, and Sotomayor. Justice Ginsburg dissented.
Court ruled that in general, race can be used as a factor in university
admissions, as long as the use of race is “narrowly tailored” to achieve a
compelling interest. This means the
program must be extremely well designed to achieve diversity without interfering
with the rights of other students. The Court also said that a university’s
desire to have a diverse student body is a compelling interest. However, the justices said that the Fifth
Circuit Court of Appeals did not properly consider whether UT’s program was
actually narrowly tailored to achieve this interest. The Supreme Court instructed the Court of
Appeals to examine the program more closely to decide whether UT’s program is
Justice Thomas wrote a concurrence in which he said that
the case could also have been decided for Abigail Fisher. He explained that this is because he believes
race should never be used in admitting students to universities. Justice Thomas said that any consideration of
race is a violation of the Equal Protection Clause, which requires all people
to be treated equally.
Justice Ginsburg dissented because she believes that the
Court should have decided the case in favor of the University of Texas. She
stated that the Fifth Circuit Court of Appeals clearly reviewed whether or not
the UT program fit the standard laid out in Grutter,
which is enough to conclude that it is constitutional. She also said that the
Top 10% program should not be considered a “race neutral” program. This program
only brings in a diverse group of students because many Texas high schools are
mostly made up of one racial group.