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.
Does a public university violate the Equal Protection Clause of the Fourteenth Amendment when it considers race in admissions decisions?
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. 2011). UT guarantees undergraduate admission to all in-state applicants in the top ten percent of their high school class as mandated by state law (“Top Ten Percent Law”). See id. at 216–17. UT accepts the vast majority of its students through the Top Ten Percent Law. See id. at 227.
For in-state applicants outside the top ten percent of their high school classes, UT considers various factors when making admissions decisions. See id. at 226–27. UT reviews all other applicants based on Academic and Personal Achievement Indices. See Fisher, 631 F.3d at 227. The Academic Index (“AI”) is based on standardized test scores and high school class rank, while the Personal Achievement Index (“PAI”) reflects the strength of the applicant’s essays and a “personal achievement score.” See id. at 226–28. To calculate the personal achievement score, UT considers the applicant’s leadership abilities, awards and honors, work experience, extracurricular activities, and “special circumstances,” which may include socioeconomic status, family status, and race. See id. at 228. UT determines personal achievement scores holistically, so it does not consider any factor individually or assign separate numerical values for any one factor. See id. An applicant’s race has no bearing on admissions decisions if the applicant’s academic performance and essays are sufficiently strong or prohibitively weak, and the university does not monitor the racial composition of the class during the admissions process. See id. at 227–30.
UT has employed its AI and PAI schemes since 1997. See Fisher, 631 F.3d at 230. The university had previously made explicit race-based admissions decisions, until the Fifth Circuit’s 1996 decision in Hopwood v. Texas made this practice illegal. See id. at 223. UT did not factor race into the PAI until 2005, after the Supreme Court’s 2003 decision in Grutter v. Bollinger that allowed a university to consider race in a limited context. See id. at 224–25, 230.
Petitioner Abigail Fisher, a white Texas resident, was denied undergraduate admission to UT for the Fall 2008 entering class. See Fisher, 631 F.3d at 217. Claiming that her academic credentials exceeded those of many admitted minority students, Fisher filed suit in the United States District Court for the Western District of Texas, challenging UT’s use of race in admissions under the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and Title VI of the Civil Rights Act of 1964. See Fisher v. Univ. of Tex. at Austin, 645 F. Supp. 2d 587, 590 (W.D. Tex. 2009). The district court granted summary judgment for UT, and the Fifth Circuit affirmed, finding that UT’s use of race in admissions passed the strict-scrutiny standard established by the Supreme Court in Grutter. See Fisher, 631 F.3d at 216–17, 231; Fisher, 645 F. Supp. 2d at 613. After the Fifth Circuit denied rehearing en banc, Fisher appealed to the Supreme Court. See Fisher v. Univ. of Tex. at Austin, 644 F.3d 301, 303 (5th Cir. 2011); Brief for Petitioner at 1, 11. The Supreme Court granted certiorari on February 21, 2012 to consider whether UT’s consideration of race in undergraduate admissions decisions violates the Fourteenth Amendment.
In the 2003 case Grutter v. Bollinger, the Supreme Court held in a 5–4 split decision that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” See Grutter v. Bollinger, 539 U.S. 306, 325. Under Grutter’s rationale, race-conscious admissions policies at public universities must be “narrowly tailored” to pass strict scrutiny. See id. at 326. Pure quota systems are unconstitutional, but a holistic admissions scheme can stand if a university considers race as one of many factors in individualized admissions decisions. See id. at 334. Respondent UT argues that it has a compelling interest under Grutter in pursuing student-body diversity and that its holistic and nuanced approach to admissions is necessary to achieve this interest. See Brief for Respondents at 32–33. Petitioner Fisher counters that UT lacks a compelling interest for its race-conscious admissions policy and urges that Grutter be clarified or overruled. See Brief for Petitioner at 19, 53. In light of the sensitive political context and principles of stare decisis, UT warns that overturning Grutter would undermine the legitimacy of the Supreme Court and upset the stability of the law. See Brief for Respondents at 51–53.
The CATO Institute suggests that race-conscious admissions policies can create negative educational environments, with heightened racial tensions and stigmatization. See Brief of Amicus Curiae Cato Institute in Support of Petitionerat 15–16. More specifically, CATO argues that race-conscious policies reinforce stereotypes that minorities are unable to achieve success on their own, thereby promoting notions of inferiority and feelings of division and hostility. See id. The Center for Individual Rights supports this argument by noting that the beneficiaries of race-conscious policies often underperform at the universities, further perpetuating those negative stereotypes. See Brief of Amicus Curiae The Center for Individual Rights in Support of Petitioner at 13–14.
Numerous colleges and universities counter these arguments, asserting that race-conscious admissions policies create a more diverse educational environment and provide greater opportunities to historically underrepresented racial groups. See, e.g.,Brief of Amici Curiae Amherst College et al. in Support of Respondents at 6. The United States endorses the notions that a racially diverse educational environment promotes cross-racial understanding, helps to eliminate racial stereotypes, enhances learning, and better prepares students for diversity in the workplace and society. See Brief of Amicus Curiae United States in Support of Respondents at 8–9. The American Civil Liberties Union argues that colleges and universities are entitled to seek the benefits of racial diversity based on academic freedom and institutional autonomy. See Brief of Amicus Curiae American Civil Liberties Union in Support of Respondents at 15, 19–21.
Fisher contends that even if UT has a compelling interest in a racially diverse student body, it could achieve this interest through the Top Ten Percent Law without having a race-conscious admissions policy. See Brief for Petitioner at 38–39. The Asian American Legal Foundation further argues that UT’s admissions policy discriminates against some students, like Asian applicants, by treating them as members of an overrepresented, and therefore disfavored, race. See Brief of Amici Curiae Asian American Legal Foundation and the Judicial Education Project in Support of Petitioner at 7. The American Center for Law and Justice agrees, further arguing that the government should not define who is a member of a race, especially in a country with many multiracial individuals. See Brief of Amicus Curiae American Center for Law and Justice in Support of Petitioner at 3.
UT maintains that the Top Ten Percent Law is insufficient to achieve the diversity it needs. See Brief for Respondents at 8. According to UT, the Top Ten Percent Law has increased overall racial diversity at the university because Texas’s high schools are highly segregated. See id. Thus, most racial minority students admitted under the law come from predominantly minority high schools. See id. By considering the race of applicants not admitted under the Top Ten Percent Law, UT argues that it can achieve increased diversity within racial groups, thereby creating an even richer educational environment. See id. The Asian American Legal Defense and Education Fund points out that race-conscious admissions policies like that used by UT can increase diversity within racial groups, like Asian students, by affirmatively benefitting underrepresented subgroups. See Brief of Amici Curiae Asian American Legal Defense and Education Fund et al. in Support of Respondents at i–ii.
In sum, this case presents the Supreme Court with an opportunity to reevaluate the use of race-conscious university admissions policies and to reexamine its holding in Grutter. However the Court rules, its decision will have substantial impacts on admissions practices as well as resulting racial demographics and educational environments.
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.
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.
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.
The Supreme Court will determine whether UT’s admissions policy, which considers race as one factor of a holistic scheme, is constitutional under the Equal Protection Clause of the Fourteenth Amendment. The Court may also reexamine whether racial classifications generally are still permissible in the university-admissions process. Fisher argues that UT’s admissions policy fails strict-scrutiny analysis and asks the Court to clarify or overrule Grutter, which allows some consideration of race in admissions decisions. UT argues that its admissions policy is essentially identical to the policy upheld in Grutter and that the Court should not overrule Grutter. This case will have significant implications for university admissions policies and racial demographics at schools across the country.
- The New York Times, Adam Liptak: College Diversity Nears Its Last Stand (Oct. 15, 2011)
- The New Yorker, Jeffrey Toobin: The Other Big Supreme Court Case (May 1, 2012)
- Rasmussen Reports: 55% Oppose Affirmative Action Policies for College Admissions (Feb. 26, 2012)