Arthur Zhu
University of Texas
Abigail Noel Fisher (Petitioners) v. University of Texas at Austin ( Respondents)
Statement
Abigail Noel Fisher, a white female, unsuccessfully applied for undergraduate admissions to the
University of Texas in Austin in 2008. Although Fisher obtained solid credentials, she was not admitted
to the automatic admission under Top Ten Percent Law. Therefore, Fisher subsequently had to compete
against the other non-top Ten percent in-state applicants through a systematic admissions process with
various factors toward an objective to achieve a diverse student body and a strong academic atmosphere.
Although Abigail Noel Fisher displayed a strong candidate in the admissions process, she was denied
admissions based on her Academic Index and Personal Achievement Index cumulative score. The
petitioner filed a lawsuit challenging UT’s use of race in the undergraduate admissions process as
unconstitutional. Based on the 14th amendment’s statement of equal protection under Federal law, Fisher
felt adequately “injured” by suggesting race as a predominate factor that denied her an admission to UT.
The UT adapted the newly formed admissions policy after the Supreme Court’s case of Grutter v.
Bollinger that ruled that the University of Michigan Law School can use race in their admissions process
to achieve racial diversity in public institutions. Fisher, a Texas student that did not gain admissions to the
UT stated in her lawsuit that she was denied because she was white. Fisher brought the issue to the
district court that did not rule in favor of Fisher. In addition, the Fifth Circuit rejected the lawsuit and
denied a review of the case. Finally, on February 21, 2012, the Supreme Court decided to review the legal
case.
Logistics of the UT admissions program
The University of Texas “has one of the most diverse student populations in the country and is a
national leader in the number of undergraduate degrees awarded to minority students.” The factor of race
in admissions process has changed in the past years due to judicial and legislative decisions attaining to
the case.
Until 1996, UT admitted students based on one vital factor called Academic Index (AI).
Admissions were based on the applicant’s Academic Index which is calculated on the student’s high
school rank, standardized test scores and is then adjusted to support the unrepresented minority. In 1996,
the freshman class included a widely diverse class that included 18.6% African Americans and Hispanics.
The factor of race in admissions ended following Hopwood v. Texas in which the court was not
persuaded that racial diversity is not a compelling state interest. Following the case, the Attorney General
of Texas prohibited the use of race as a factor in admissions policies of Texas state universities. In 1997,
the UT included a Personal Achievement Index(“PAI”) with the Academic Index in their admissions
policy. The PAI was designed to reward students beyond academics in a race-neutral situation and was
designed to increase minority enrollment. The PAI includes a composite score based upon two essays that
are scored on a scale of 1-6 and applicant’s personal achievement score which included various factors of
race, socio-economic status, family status and circumstances. This was utilized to include minority
students with limited opportunities to have a representation in the school system. Finally, the AI and PAI
were calculated and determined the admissions status of the student in a holistic evaluation of the
applicant’s entire file. However, admissions to UT does not guarantee admission to the student’s selected
major. Only 75% of the admits can fill competitive or selective majors. The other percentage are
automatically admitted into liberal arts as an undeclared major.
In the same year, in response to the Hopwood decision, UT enacted the Top Ten percent Law
which granted automatic admission to the graduating seniors who ranked in the top 10% of their class.
Texas applicants were then divided into top ten percent applicants or non-top ten percent applicants. The
top ten percent applicants automatically fill around 70% to 80% of the freshman. The rest of the
applicants are then measured into the Academic Index that considered several academic accomplishments
and grades. The remaining applicants that are not admitted are then measured with a Personal
Achievement Index which measures two essays and other factors to finally determine the freshman class.
In the first year, the Top Ten Percent successfully increased the minority groups at UT. African-American
enrollment rose from 2.7% to 3.0% and Hispanic enrollment rose from 12.6% to 13.2%. The Top Ten
Percent Law did not admit students based on ethnicity, but allowed minorities to represent in the
freshmen class. In addition, the Law also displayed students who “perform well academically.” In the
following years, there has been in upward trend of representation by minorities. In 2004, “77% of the
enrolled African-American students and 78% of Hispanic students had been admitted under the Top Ten
Percent Law.”(pg.15) the consensus and statistics show how the Top Ten Law contributed to the diversity
of student body and successful students. UT also stated they compensated for the loss of affirmative
action through the highly systematic admissions policies in the past that the petitioner is bringing against
in the case.
UT’s Definition of “Critical Mass”
UT also affirmed their studies by commissioning two studies to declare if the university was
enrolling a critical mass of unrepresented minorities. The 2004 Proposal “concluded that diverse student
enrollment breaks down stereotypes, promotes cross-racial understanding, and prepares students for an
increasingly diverse workplace and society.” Fisher’s statement is heavily alleging the
“unconstitutionality” of UT’s admissions policy. However, Fisher’s brief lacks evidence. The statistic
summary record establishes that
(1) following the Grutter ruling in 2003, UT officials determined whether (and if so, how) to include the
holistic consideration of race in its admissions policy
(2) UT officials adopted the holistic consideration of race in order to obtain the educational
benefits that result from a diverse student body, one that includes a critical mass of underrepresented
minorities;
(3) the ideology adopted by UT in 2005 is closely influenced by (and even more modest
than) the policy upheld in Grutter
(4) UT’s policy includes formal review of its holistic use of race once every five years
Summary of Argument
Fisher’s objection to UT’s admissions policy is based on their practical belief that the
Constitution strictly forbids the discrimination of citizens. In this case, the use of race in student
admission regardless of gender, ethnicity or certain circumstances is restricted. However, Fisher’s
statement is greatly flawed. The text of the Fourteenth Amendment requires “equal protection of the
laws”—not strict color-blindness. In all aspects of the liberty promised by the constitution, minority
groups should have equal opportunities.
First of all, the case in judicial review is similar to Grutter. Under Grutter, courts were required
to refer to university admissions policies and decisions. The decisions were technically constitutional,
because UT carefully modeled its 2005 admissions policy on Grutter in several aspects. The University’s
ambitions are the same here as in Grutter: to reach the educational benefits of a diverse student body. The
objectives are the same. Before the 2005 entering class, UT had not yet been able to achieve diversity,
including a critical mass of underrepresented minorities. As the same in Grutter, UT considers race
holistically for purposes of admitting a balanced diverse freshman class. The petitioner assumes that
there are certain quotas and statistics that determine race over other significant factors like academic
achievement and personal achievement. The petitioner’s assumption is greatly flawed. Just like in the
Grutter case, UT strives for a critical mass of unrepresented minorities to the point until there is a
consensus that unrepresented minorities do not feel isolated or overwhelmed by the majority.
The petitioner claims no persuasive justification against UT’s use of race in admissions. Fisher
applies her failure to the protection of the 14th amendment, which promises equal protection rights to all
citizens. However, Grutter and Bakke both proved that the use of race In admissions provided compelling
incentives and provided a narrowly tailored policy that meets the requirements for strict scrutiny. In the
midst of the argument, there are important educational benefits that derive from a racially diverse student
body. Although overwhelmed with the amount of social and educational evidence provided by UT, Fisher
brought the case to the district court.
UT’s admissions policy is strict and narrowly tailored to a pursuit of a compelling educational
goal. The basis of the admissions policy brings forward the most capable applicants to contribute in
different ways to the learning environment of UT and toward the economy beyond graduation. UT does
not provide a “quota or statistics” to set the standards of a diverse student body. UT adapted a policy that
measures the “critical mass” of unrepresented minorities. The achievement of a critical mass provides a
diverse interaction between races that enhances education. However, other factors are also required like
academic excellence that also provides an academically qualified class. There are no means that race is
the predominate factor.
I.
Argument
Petitioner’s Complaint That UT Uses Race Too Frequently in Admissions Policy
It is clear that UT desires the educational benefits that result from achieving a diverse student
body and because its admissions policy is narrowly tailored to further that interest, “UT is fully
authorized under the First Amendment to include holistic considerations of race” in order to
admit its entire freshman class. In addition, given that UT may admit its entire freshman class by
using holistic considerations of race, the petitioner should be aware of the admission policy and
an concept of UT’s system of selection.
It would forget common sense to hold that a university may give holistic consideration of race
for purposes of admitting 100% of the student body, but not for 25% of the class. That is
especially so, considering Grutter expressly encourages states to “experiment with different
admissions policies”
UT is free to obtain the benefits of utilizing holistic considerations of race for the entire student
body. In addition, there is nothing in Grutter forbids UT from gaining the benefits by employing
holistic review for just a portion of the student body. Even if it could be said that UT would
multiply those benefits by using holistic review across the board, it was well within the
University’s judgment and discretion not to do so.
Finally, the Petitioner doubts how much does the consideration of race actually impacts
admissions of individual students. Although, race is a factor along other admissions policies, this
issue remains a void and controversial argument. In fact, Grutter endorses the claim that race is
insufficient in admissions when there are numerous other significant factors in admission. In the
midst of this, if Fisher is right, than the case of Grutter is wrong.
II.
Consideration in Race and Ethnicity in University Admissions Proves a Compelling
Interest
Justice Powell openly declared in Bakke that "the 'nation's future depends upon leaders trained
through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples."
A majority of the Supreme Court held in Bakke that the University of California had "a
substantial interest that legitimately may be served by a properly devised admissions program
involving the competitive consideration of race and ethnic origin." (Opinion of Powell). In his
opinion, Justice Powell explained that "attainment of a racially and ethnically diverse student body"
"clearly is a constitutionally permissible goal for an institution of higher education" because it
augments the educational process in two ways.
First, racial and ethnic diversity in an academic institution teaches students skills that will
improve their performance as leaders and professionals in a diverse society. Second, racial and ethnic
diversity promotes "'speculation, experiment, and creation,'" thinking processes that are "essential to
the quality of higher education."
The University of Michigan Law School presented a mass of undisputed evidence substantiating
both of Justice Powell's statements regarding the ways in which racial and ethnic diversity enhance
students' intellectual and social growth. The Justices found that the University had presented "solid
evidence regarding the educational benefits that flow from a racially and ethnically diverse student
body" and, guided by Justice Powell's opinion, concluded that the University's interest in achieving
these benefits was compelling
Judge Friedman likewise acknowledged the educational benefits of racial diversity, observing that
"racial diversity in the [university] population may provide the educational and societal benefits" of
"enabling students to better understand persons of different races" and "equipping them to serve as
lawyers in an increasingly diverse society and an increasingly competitive world:. (Gratz)
III. UT adopted a New Affirmative Action Policy for 2005 class that is Narrowly Tailored to
Further a Compelling Educational Interest in Diversity of Student Body.
UT revised its admissions policy for the 2005 entering class based on a valid reason that is
consistent with the narrow tailoring requirements articulated in Grutter. In Grutter, the Court
established five basic criteria to measure whether or not a university’s use of race is narrowly
tailored to achieve a diverse student body: “(1) the absence of quotas; (2) individualized
consideration of applicants; (3) serious, good-faith consideration of race-neutral alternatives to the
affirmative action program; (4) that no member of any racial group was unduly harmed; and (5) that
the program had a sunset provision or some other end point.” (Grutter, 539 U.S.).
Three of these criteria bring about a precise system: An admissions policy that considers the race
of applicants in a holistic rather than a statistic manner. Therefore, similar in Grutter, the UT
admissions program (1) is not a “quota,” (2) provides “individualized consideration of applicants,”
and (3) does not “unduly harm” members of any racial group. The two remaining criteria concern
the necessity and duration of the admissions policy. The petitioners do not dispute the validity of
UT’s methodology. Grutter (“UT’s policy was based on the Law School’s policy”).
The only dispute with regard to narrow tailoring is whether UT has demonstrated a valid need for
its policy. Petitioner contend that UT’s revised admissions policy is not narrowly tailored because,
when UT adopted the policy for the 2005 entering class, it was not needed for UT to enroll a critical
mass of underrepresented minorities. Petitioner’s narrow tailoring argument proceeds in two steps:
First, Petitioner’s contention that “UT had already achieved a critical mass of underrepresented
minorities before 2005 assumes that critical mass is measured by combining the total enrollment of
African-American and Hispanic students.’ Second, in arguing that UT successfully attained critical
mass by implementing the Top 10% law, the Petitioner presumes that percentage plans is a
“workable race-neutral alternative” that UT was required to consider before adopting the holistic
consideration of race. A defect in either of these claims would be fatal to their narrow tailoring
argument. In fact, the Petitioner is greatly flawed; the Top 10% plan did not achieve a “critical
mass of underrepresented minorities” prior to 2005. In legal context, the Top 10% plan is not
relevant to narrow tailoring in any event, because percentage plans are not the sufficient alternative
that universities must consider in determining whether they need to engage in the holistic use of
race.
A. Petitioner’s Argument over the Representation of Asian-Americans and Hispanics in UT
is overall ineffective and proves no merit.
Alternatively, Plaintiffs claim that UT must have been pursuing representational, rather
than educational, interests in student body diversity, because its admissions policy “favors”
Hispanics over other racial groups. However, Fisher’s argument is greatly flawed for it can be
said for the policy upheld in Grutter which likewise focused attention on “African-Americans,
Hispanics and Native Americans,” but not Asian-Americans. In Grutter, university officials
testified “that other groups, such as Asians and Jews, have experienced discrimination, but
explained they were not mentioned in the policy because individuals who are members of those
groups were already being admitted to the Law School in significant numbers.”
Grutter states by granting preferences to applicants from certain ethnic groups, the
admissions programs of University of Michigan college and law school place racial barriers
before Chinese Americans and other ‘non-preferred’ individuals that are unjustified by any
remedial purpose.” The Petitioner attempts to advocate this theory of liability by claiming that
UT actually enrolled more Hispanics than Asian-Americans. Plaintiffs make this factual
assertion in an effort to undermine UT’s treatment of Hispanics, but not Asian-Americans, as
“underrepresented” minorities. But this claim is factually flawed—and legally irrelevant in any
event. To begin with, as a factual matter, Asian-American students consistently outnumbered
Hispanics before the 2005 admissions policy took effect. “The Office of the State
Demographer, Texas State Data Center, estimates that there has been a rising consensus of
Hispanics and other minorities since the 2005 admissions”
UT’s Definition of Critical Mass in Contrast to Gratz and Grutter
In a contrasting point to the quota, the UT officials declined to establish a precise numeral value
of critical mass. The Petitioners hypothesize that UT could not have been motivated by the
educational benefits that result from a critical mass of underrepresented minorities. The undisputed
summary judgment record to the contrary because UT officials declined to establish a precise
numerical definition of critical mass. However, the same could be said of the admissions policy
upheld in Grutter. Accordingly, Fishers’ criticism of UT is contradictory to Grutter itself.
III.
The admissions officers who testified in Grutter did not quantify critical mass in terms of
numbers or percentages. In contrast, they expressly testified that “there is no number, percentage, or
range of numbers or percentages that constitute critical mass.”. As the director of admissions put it,
“critical mass’ means ‘meaningful numbers’ or ‘meaningful representation,” sufficient to ensure that
minority students will “participate in the classroom and not feel isolated.” Likewise, the district court
in Grutter found that the university had refrained from defining critical mass in numerical terms.
(Grutter v. Bollinger) (testimony noting that “the final version of the admissions policy” lacked
numerical targets “because percentages were too rigid and could be misconstrued as a quota.”). UT’s
election not to reduce critical mass to strict numerical terms is therefore entirely consistent with
Grutter In Grutter, the majority expressly confronted (and rejected) the criticism that university
officials had established a quota, based on accusations that those officials had a target range for
minority enrollment in mind.
Notably, in rejecting this claim, the Court said only that “some attention to numbers . . . does not
transform a flexible admissions system into a rigid quota.”). Presumably, the Court employed this
language because, at a certain point, too much attention to numbers might trigger constitutional
scrutiny. The Law School’s interest is not simply to assure within its student body some specified
percentage of a particular group merely because of its race or ethnic origin.
Petitioners’ argument here is therefore impossible to reconcile with Grutter. Indeed, the
Petitioners recognize that Grutter did not require university officials to either define or quantify this
critical mass or establish how it might determine when the critical mass had been achieved.
IV.
The Use of Affirmative Action is vital to businesses with minority employees that are
vital to the Nation’s Economic Success.
Institutions of higher learning have a compelling interest in considering race in admission
decisions, not only because diversity enhances education, but because diversity enhances the many
enterprises students will undertake following graduation. Selective universities and colleges serve
as training grounds to the higher education of American society, especially businesses.
Corporations and others hire from selective academic institutions not only because they want
select the students with greatest potential, but also because they want to prepare their students to
perform in the top levels of the businesses. Utilizing the highest quality faculty, certain curriculum,
efficient programs and facilities, and connections, these universities and colleges offer many great
opportunities. Therefore, the graduating classes of these institutions to some extent, define the pool
from which potential future leaders and managers of the business world will emerge. Institutions of
higher learning have a special responsibility to make admissions decisions that will not reward the
academic performance of individual students, but prepare the potential leaders and businessman for
the Nation's economic future.
To achieve that, academic institutions must be permitted to continue to consider, as one factor
among many of the other significant factors, the race and ethnicity of applicants. If no consideration,
the evidence suggests that the number of minorities admitted to and graduating from these institutions
will reduce. Any reduction in diversity at these institutions accordingly would reduce the diversity of
the pool of candidates from which businesses could select professionals. Following on, that reduction
threatens to deprive businesses of opportunities and benefits of having a critical mass of people of
different ethnicities in their ranks and would greatly hurt our Nation's well-being.
There can be little doubt that racial and ethnic diversity in the major roles of the corporate world
is crucial to our Nation's economic status. In a country where minorities will soon dominate the labor
force, diversity in the upper ranks of management is increasingly important. A modified workforce, in
which whites dominate the highest levels of the managerial corps and minorities dominate the labor
corps, may formulate further discrimination. It also would be counter-progressive, eliminating many
of the productivity gains businesses have made through efforts to eradicate discrimination and
improve relations among workers of various races.
Racial and ethnic diversity in businesses’ upper levels also enhances their productivity and
economic opportunities that, cross-cultural competence in managers of any race or ethnicity does.
First, racial diversity among managers improves recruiting, retention, and morale of workers who are
minorities. Second, "increasing the number of minorities in areas such as product development,
marketing and advertising allows companies to maximize their ability to tap into many segments of
the consumer market."(marketwatch)
Conclusion
In conclusion, UT’s admissions policy is strict and narrowly tailored to a pursuit of a compelling
educational goal. The basis of the admissions policy brings forward the most capable applicants to
contribute in different ways to the learning environment of UT and toward the economy beyond
graduation. UT does not provide a “quota or statistics” to set the standards of a diverse student body. UT
adapted a policy that measures the “critical mass” of unrepresented minorities. The achievement of a
critical mass provides a diverse interaction between races that enhances education. Similar to Grutter and
Bakke, The UT addresses the several criteria to advocate the need for affirmative action that is greatly
beneficial to the future of the world economy. If UT is wrong, Grutter, Bakke and Gratz will all have to
be re-evaluated for the universities see diversity as not a representation, but a necessity that is for the
future of education and innovation.