Street Law Case Summary
Fisher v. University of Texas at Austin
Argued: October 10, 2012
Decided: June 24, 2013
Background
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 classification.
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.
Facts
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 outside Texas.
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
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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 unconstitutional.
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.
Issue
Does UT-Austin’s consideration of race in undergraduate admissions violate the Equal Protection
Clause of the Fourteenth Amendment?
Constitutional 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. Bakke (1978)
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
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specifically written to serve that interest by including race merely as a “potential ‘plus’
factor.”
Arguments for Fisher
 Approximately 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 criteria.
 The 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 classes.
 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.
Arguments for UT-Austin
 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.
 Race does 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
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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.
Decision
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.
Majority
The 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
narrowly tailored.
Concurrence
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.
Dissent
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.
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