Fisher v. University of Texas at Austin

Fisher claims that UT impermissibly considered race as a factor in its admissions decisions, which violated her Fourteenth Amendment rights. See Brief for Petitioner, Abigail Noel Fisher, at 2, 11. UT argues that its use of a holistic admissions process, considering race as one factor for admission, increases student-body diversity and benefits all students. See Brief for Respondents, Univ. of Tex. at Austin et al., at 6, 11–12.

The Fourteenth Amendment guarantees equal protection of the laws without regard to a person’s race. See U.S. Const. amend. XIV § 1.The Supreme Court has addressed race-based admissions decisions on several prior occasions. In Regents of the University of California v. Bakke, the Court struck down the admissions policy of the Medical School at the University of California at Davis that set aside 16 of 100 seats for non-white applicants. See 438 U.S. 265, 279 (1978). In Grutter v. Bollinger, a divided Court upheld the University of Michigan Law School’s admission policy, which included race as a plus factor rather than employing a rigid quota system. See 539 U.S. 306, 343 (2003). Grutter reaffirmed the central premise of Justice Powell’s concurring opinion in Bakke: student-body diversity is a compelling state interest, but racial quotas are not permissible. See Id. Applying Grutter and Bakke, the Court of Appeals for the Fifth Circuit upheld UT’s admissions policy, finding UT’s policy “identical” to the policy upheld in Grutter. See Fisher, 631 F.3d at 259.

Both parties agree that UT’s admissions policy must survive strict scrutiny. See Brief for Petitioner at 18–19; Brief for Respondents at 18–19. Under strict-scrutiny review, UT must demonstrate that its consideration of race is “necessary to further a compelling government interest” and “specifically and narrowly framed to accomplish that purpose.” See Grutter, 539 U.S. at 327, 333.

Compelling Government Interest

“[G]overnment may treat people differently because of their race only for the most compelling reasons.” See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227. UT asserts that its admissions policy seeks to increase the educational benefits that result from a diverse university. See Brief for Respondents at 39. The Supreme Court has previously stated that the educational benefits of student-body diversity are a compelling interest, but Fisher claims that UT is engaging in racial balancing, which the Court held to be unconstitutional in Grutter. See Grutter, 539 U.S. at 330. For example, according to Fisher, UT considers Hispanics underrepresented but Asian-Americans overrepresented, even though there are more Hispanic students than Asian-American students in the student body. See Brief for Petitioner at 7. Fisher argues that such a determination would require using Texas’s racial demographics as a standard, which would not advance the diversity interest deemed compelling in Grutter. See id. at 7–9.

UT denies that it is engaged in racial balancing, insisting that its interest is in preparing students for a diverse society after they leave the university. See Brief for Respondents at 11. UT further asserts that the policy sets no thresholds, quotas, or targets for minority admissions. See id. at 29. UT claims that the policy makes racial balancing impossible because the university does not monitor the racial composition of the class during the admissions process. See id. According to UT, race is just one factor in the PAI score, and the admissions committee admits students based on the PAI and AI scores without knowledge of an individual candidate’s race. See id.

Fisher also claims that UT’s only other interest is in promoting individual classroom diversity. See Brief for Petitioner at 29. Fisher argues that although Grutter permits universities to seek a “critical mass” of minority students in the student body, it does not suggest that each classroom must have a similar critical mass. See id. Instead, she claims that the proper base for measuring diversity is the student body as a whole. See Id. Fisher further argues that even if UT’s admission policy furthers a compelling state interest, the university has failed to show that the policy is necessary to create a diverse student body. See id. at 31. She asserts that Texas’s Top Ten Percent Law has caused a dramatic increase in minority enrollment, so UT has established a “critical mass” of minority students without the use of racial classifications. See Id. at 35–36. Because the Top Ten Percent Law has proven to be a “workable race-neutral alternative,” Fisher claims that UT’s race-conscious admissions policy is not necessary to ensure diversity. See id.

UT argues that its admissions policy is necessary to further student-body diversity because it allows for nuanced judgments and a holistic approach that is impossible under the Top Ten Percent Law. See Brief for Respondents at 32–33. UT argues that although the Top Ten Percent Law has increased minority enrollment, this rise is the result of de facto segregation in Texas high schools. See id. at 33. Thus, most minority students admitted under the Top Ten Percent Law come from majority-minority high schools. See id. According to UT, its admissions policy allows for greater “diversity within diversity” by drawing minority students from a variety of backgrounds. See Id. In Grutter, Justice O’Connor addressed Texas’s Top Ten Percent Law, observing that the plan may prevent UT from conducting the individualized assessments necessary to assemble a student body that is diverse beyond just racial makeup. See Grutter, 539 U.S. at 340.

Fisher also claims that UT has failed to provide strong enough proof that racial classifications were necessary to create a diverse student body. See Brief for Petitioner at 34. UT argues that such a high standard would subject universities to extra-strict scrutiny beyond the requirements of Grutter. See Brief for Respondents at 50. Instead, UT asks the Court to look to whether the university made a “serious, good faith consideration” when determining that other remedies were not viable. See id. at 35.

Narrow Tailoring

In order to survive strict scrutiny, UT’s use of racial classifications in admissions decisions must be “narrowly tailored,” that is, no broader than necessary to achieve its goal. See Grutter, 539 U.S. at 333. Fisher claims that UT cannot narrowly tailor its interest in classroom diversity. See Brief for Petitioner at 43–45. She argues that UT’s definition of classroom diversity—at least two African-American, two Hispanic, and two Asian-American students—is unattainable. See Id. at 43. Further, she notes that because UT’s policy disfavors Asian-American students, it actually makes classroom diversity more difficult to attain. See Id. Fisher also argues that UT’s interest in racial demographics is impossible to implement in a narrowly tailored manner. See id. at 45–46. According to Fisher, attempting to mirror state demographics would require enrollment targets for students of various racial groups, which would constitute a de facto quota. See Id. Lastly, Fisher argues that because UT has one of the largest Hispanic student populations, UT’s classification of Hispanics as underrepresented is impermissible racial balancing based on state demographics. See id. at 46–47.

UT asserts that it is interested in broad, education-based diversity, and it denies a focus on classroom diversity or racial balancing. See Brief for Respondents at 11, 29. UT argues that its plan is narrowly tailored because it subjects candidates to an individualized, holistic review process, and race is only a possible plus factor. See Id. at 25. According to UT, there is no race-based target or quota, and the university does not monitor the racial composition of the class during the admissions process. See Id. at 19. UT argues that its policy is essentially identical to the policy upheld in Grutter, so the Court should uphold the admissions scheme. See Id. at 1.

Overruling Precedent

Fisher claims that Grutter is full of “interpretive difficulties” that allow lower courts to depart from strict scrutiny analysis in analyzing race-based admissions schemes. See Brief for Petitioner at 53. She claims that courts mechanically uphold admissions policies and are too deferential to universities. See id.Fisher also claims that Grutter has proven to be unworkable and perpetuates racial hostilities. See Id. at 55–56. Thus, Fisher asks the Court to clarify or overrule Grutter in order to restore strict scrutiny review in higher education. See Id. at 53.

UT responds that the Court has never questioned Grutter’s core holding, arguing that Grutter properly applies strict scrutiny so the Court should not overrule it. See Brief for Respondents at 52. UT notes that Fisher does not challenge that the government has a compelling interest in promoting student-body diversity. See Id. UT also argues that the Bakke and Grutter standards have not proven to be unworkable, pointing to three decades of successful implementation by the Department of Education and a lack of conflicting decisions in the lower courts. See Id. The university also underscores Grutter’s positive impact, noting that the student-body diversity fostered by these programs has benefited millions of Americans. See id. at 53.