Affirmative action is defined as a set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future. Applicants may be seeking admission to an educational program or looking for professional employment.
Does a public university violate the Equal Protection Clause of the Fourteenth Amendment when it considers race in admissions decisions?
Petitioner Abigail Fisher, a white Texan, was denied admission to the University of Texas at Austin for the Fall 2008 entering class. Fisher sued the university, arguing that the denial violated her Fourteenth Amendment right to equal protection because she was denied admission to the public university in favor of minority applicants with lesser credentials. Fisher contends that the university’s admission policy cannot survive strict scrutiny as required by Grutter v. Bollinger. The university argues that its admissions policy is essentially identical to the policy upheld in Grutter. It asserts that its use of a holistic admissions process, considering race as one factor for admission, creates a diverse student body that benefits the entire university. This case allows the Supreme Court to reexamine Grutter, and it will have far-reaching implications for university admissions policies and racial demographics in schools throughout the United States.
May the University of Texas at Austin consider race in undergraduate admissions decisions under the Fourteenth Amendment?
The University of Texas at Austin (“UT”) is a public education institution, authorized by the Texas Constitution and backed by state and federal funding. See Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 226 (5th Cir.
Does the University of Texas at Austin’s use of racial preferences in its admissions process violate the Equal Protection Clause of the Fourteenth Amendment?
In this case, the Supreme Court will consider whether the University of Texas at Austin (“UT”)’s admissions policy, which considers race, is constitutional under the Equal Protection Clause of the Fourteenth Amendment. Abigail Fisher applied to UT for admission to its 2008 freshman class. Fisher v. University of Texas at Austin, et al., 758 F.3d 633, 637 (5th Cir. 2014). As part of its admission process, UT computes and considers Personal Achievement Index (“PAI”) Scores, which include various personal characteristics of applicants, including their race. UT does not assign a numerical score or value to the elements of an applicant’s PAI. See id. at 638. Ultimately, UT denied Fisher admission based on her PAI scores, and Fisher would not have received a seat in the 2008 class, even with a perfect PAI score, regardless of race. See id. at 639. In Fisher I, Fisher alleged that UT’s admission policy violated the Fourteenth Amendment. The Supreme Court ultimately remanded that case to the Court of Appeals for the Fifth Circuit, so the appeals court could consider whether UT’s admission policy survives strict scrutiny under Grutter v. Bollinger, 123 S. Ct. 2325 (2003). See Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013). The Fifth Circuit held that the policy did survive strict scrutiny. On appeal to the Supreme Court, Fisher argues that UT’s pursuit of intra-racial diversity is not a clearly articulated compelling government interest, and its admissions scheme is not narrowly tailored to achieving that interest. See Brief for Petitioner, Abigail Noel Fisher at 25, 30, 38. UT argues that the Court has already held that a university’s interest in diversity is compelling, and that UT’s admissions policy is narrowly tailored, because race-neutral approaches are insufficient to achieve its interest. See Brief for Respondents, University of Texas at Austin, et al. at 25, 40, 42. The outcome of this case will affect the admissions schemes and racial demographics of universities.
Can the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin?
Abigail Fisher applied to the University of Texas at Austin (“UT”) for admission to its fall 2008 class. Fisher v. University of Texas at Austin, et al., 758 F.3d 633, 637 (5th Cir.
Can school districts constitutionally use percentage-based range plans to assign students to public schools based on race in order to capture the benefits of educational diversity?
The Jefferson County Public School District in Jefferson County, Kentucky, requires that 15 to 50 percent of all students in each school be African-American. Petitioner Crystal Meredith claims that the district violated the Fourteenth Amendment when it rejected her application to enroll her son at a nearby school on the basis of race. To decide this case, the Supreme Court will have to determine whether racial diversity in K–12 public education is a compelling state interest and whether the district’s racial range mandate is narrowly tailored to further that interest. The decision will determine the extent to which schools are permitted to consider race in school assignment policies.
The backdrop for this case was set in 1954. In Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court mandated the desegregation of public schools. Over subsequent decades, federal courts ordered school districts with institutionalized segregation plans to desegregate through a system of redistricting and busing. See Swann v. Charlotte-Mecklenburg Bd.
The authors would like to thank Professors Sherri Lynn Johnson, Trevor Morrison, and Michael Heise for their insights into this case.
The Supreme Court will hear this case in tandem with a companion case, Parents Involved in Community Sch. v. Seattle Sch. District , which involves a student assignment plan that uses race as a tiebreaker to balance high schools that differ by more than 15 percent from the racial make up of the Seattle public school system.
Whether a school district’s decision to admit a student to a desegregated high school based on that student’s race, in an effort to achieve a racial balance within the school and therefore foster diversity in the educational setting, violates that student’s Equal Protection rights given by the Fourteenth Amendment.
Seattle School District No. 1 uses an “open choice” plan in which students rank their preferred schools. When a student’s first choice cannot be accommodated, the District uses race as a tiebreaker in order to achieve a desired racial balance in each individual school. Parents Involved in Community Schools, a non-profit organization, argues that the District’s policy amounts to unconstitutional racial balancing under the Supreme Court’s 2003 decisions in Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003). The District, however, argues that its consideration of race is to further the compelling state interest of achieving the beneficial effects of racial diversity. The Court of Appeals for the Ninth Circuit held that the District had a compelling state interest in achieving the benefits of racial diversity and that its plan was narrowly tailored. The Supreme Court will now review that determination in light of its Equal Protection decisions in Grutter and Gratz and is asked to decide whether racial diversity in high schools is a compelling state interest.
This case was brought by a non-profit organization, Parents Involved in Community Schools (“PICS”), representing parents of students in the Seattle School District (“District”) who objected to the school district’s use of race as a tiebreaker for admission to schools as violating the Equal Protection Clause.
Does a state violate the Equal Protection Clause or political-restructuring doctrine by amending the state constitution to prohibit public universities and schools from using race in their admissions processes?
In November 2006, 58% of Michigan voters approved Proposal 2, which created Section 26 of the Michigan Constitution, banning public universities and schools from using race as a factor in admissions decisions. On March 18, 2008, a Michigan District Court ruled the amendment constitutional. In 2011, an en banc panel of the Sixth Circuit reversed and ruled the amendment unconstitutional because it violated the political-restructuring doctrine. Petitioner Bill Schuette, the Attorney General of Michigan, argues that because Section 26 of the Michigan Constitution lacks discriminatory intent it is not a racial classification, and thus the Equal Protection Clause and political-restructuring doctrine do not apply. However, Respondent Coalition to Defend Affirmative Action contends that Section 26 contains racial classifications because it targets racially-conscious admissions plans in public schools. The Supreme Court will decide whether this prohibition of the use of race in university admissions violates the Equal Protection Clause or the political-restructuring doctrine. The Court's decision will have far-reaching implications for admissions policies and racial demographics in public universities and schools throughout the United States.
Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race and sex-based discrimination or preferential treatment in the admissions decisions of public universities.
In November 2006, Michigan voters adopted Proposal 2, an amendment to the Michigan Constitution prohibiting discrimination against or preferential treatment to individuals in public education, government contracting, and public employment on the basis of race, sex, ethnicity, or national origin.
