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Fisher v. University of Texas

Fisher v. University of Texas
Argued October 10, 2012
Decided June 24, 2013
Full case name Abigail Noel Fisher, Petitioner v. University of Texas at Austin, et al.
Docket nos. 11-345
Citations 570 U.S. ___ (more)
Argument Oral argument
The Fifth Circuit Court of Appeals failed to apply strict scrutiny in its decision affirming the admissions policy. The decision is vacated, and the case remanded for further consideration.
Court membership
</td></tr><tr><th colspan="2" style="text-align:center;background-color: #99c0ff; white-space:nowrap">Case opinions</th></tr><tr><th scope="row" style="text-align:left">Majority</th><td>

Kennedy, joined by Roberts, Scalia, Thomas, Breyer, Alito, Sotomayor</td></tr><tr><th scope="row" style="text-align:left">Concurrence</th><td> Scalia</td></tr><tr><th scope="row" style="text-align:left">Concurrence</th><td> Thomas</td></tr><tr><th scope="row" style="text-align:left">Dissent</th><td> Ginsburg</td></tr><tr><td colspan="2" style="text-align:center"> Kagan took no part in the consideration or decision of the case.</td></tr><tr><th colspan="2" style="text-align:center;background-color: #99c0ff; white-space:nowrap">Laws applied</th></tr><tr><td colspan="2" style="text-align:center"> U.S. Const. amend. XIV, Grutter v. Bollinger</td></tr></table>

Fisher v. University of Texas, 570 U.S. ___ (2013), is a United States Supreme Court case concerning the affirmative action admissions policy of the University of Texas at Austin. The Supreme Court voided the lower appellate court's ruling in favor of the University and remanded the case, holding that the lower court had not applied the standard of strict scrutiny, articulated in Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1978), to its admissions program. The Court's ruling in Fisher took Grutter and Bakke as given and did not directly revisit the constitutionality of using race as a factor in college admissions.[1]

The suit, brought by undergraduate Abigail Fisher in 2008, asked that the Court declare the University's race-conscious admissions inconsistent with Grutter, which had in 2003 established that race had an appropriate but limited role in the admissions policies of public universities. While reasserting that any consideration of race must be "narrowly tailored", with Fisher the Court did not go on to overrule Grutter, a relief for civil rights groups who feared that the Court would end affirmative action.[2]

The United States District Court heard Fisher v. University of Texas in 2009 and upheld the legality of the University's admission policy in a summary judgment. The case was appealed to the Fifth Circuit which also ruled in the University's favor. The Supreme Court agreed on February 21, 2012, to hear the case. Justice Elena Kagan recused herself due to the fact that she served as the Solicitor General when the Department of Justice filed a friend-of-the-court, or amicus curiae, brief in the Fisher case when it was pending in the U.S. Court of Appeals for the Fifth Circuit. On June 24, 2013, the Fifth Circuit's decision was vacated, and the case remanded for further consideration in a 7–1 decision, with Justice Ruth Bader Ginsburg dissenting. Justices Antonin Scalia and Clarence Thomas filed concurring opinions.


Plaintiffs Abigail Noel Fisher and Rachel Multer Michalewicz applied to the University of Texas at Austin in 2008 and were denied admission. The two women, both white, filed suit, alleging that the University had discriminated against them on the basis of their race in violation of the Equal Protection Clause of the Fourteenth Amendment.[3] The University of Texas at Austin accepts students in the top 10% of each Texas high school's graduating class, regardless of their race; under Texas House Bill 588, 81% of 2008's freshman class were admitted under the plan.[4]

Applicants who, like Fisher, fail to graduate in the top 10% of their high schools, can still gain admission by scoring highly in a process which evaluates their talents, leadership qualities, family circumstances, and race.[5][6] Fisher had a grade point average of 3.59 (adjusted to 4.0 scale)[7] and was in the top 12% of her class at Stephen F. Austin High School.[7] She scored 1180 on her SAT (measured on the old 1600-point scale, because UT Austin did not consider the writing section in its undergraduate admissions decision for the 2008 incoming freshman class).[7] The 25th and 75th percentiles of the incoming class at UT-Austin were 1120 and 1370.[7] She was involved in the orchestra and math competitions and volunteered at Habitat for Humanity.[7]

During the case proceedings, Fisher enrolled at Louisiana State University, where she was in her final year as an undergraduate in 2012.[8][9] In 2011, Michalewicz withdrew from the case, leaving Fisher as the sole plaintiff.[5][9]

Lower courts

In 2009, United States District Court judge Sam Sparks upheld the University's policy, finding that it meets the standards laid out in Grutter v. Bollinger.[8] That decision was affirmed by a Fifth Circuit panel composed of judges Patrick Higginbotham, Carolyn Dineen King and Emilio M. Garza. In his ruling, Higginbotham wrote that the "ever-increasing number of minorities gaining admission under this 'Top Ten Percent Law' casts a shadow on the horizon to the otherwise-plain legality of the Grutter-like admissions program, the Law's own legal footing aside".[10]

A request for a full-court en banc hearing was denied by a 9–7 vote by circuit judges.[11][12]

Supreme Court

In September 2011, lawyers representing Fisher filed petition seeking review from the Supreme Court.[8][13] Plaintiff's legal team was assembled by the Project on Fair Representation, a Washington, D.C.-based legal defense fund active in attempts to overturn race-based laws, whose legal fees were paid by Donors Trust, a conservative donor-advised fund.[14] On February 21, 2012, the court granted certiorari in Fisher v. University of Texas at Austin. Justice Elena Kagan recused herself from the case and did not participate in the court's discussions.[15] Kagan's recusal was most likely due to her involvement with the case while she was Solicitor General.[5]

Amicus briefs were filed by Teach for America, the Asian American Legal Foundation, the Asian Pacific American Legal Center, the Asian American Legal Defense and Education Fund, the California Association of Scholars and Center for Constitutional Jurisprudence, the Black Student Alliance at The University of Texas, the Mountain States Legal Foundation, the Pacific Legal Foundation, Peter Kirsanow, Stuart Taylor, Jr., and many others.[16]

The case was on the Supreme Court calendar for the term beginning in October 2012.[17][18] There were concerns that if the Court overruled Grutter, affirmative action at public universities would end in the United States.[8] Some argued that the result of such a ruling would decrease the number of black and Hispanic students admitted to American universities while increasing the proportion of white and Asian students.[8]

Oral arguments

On October 10, 2012, the Supreme Court heard oral arguments in the case. Bert Rein represented the petitioner, Gregory G. Garre, a former Solicitor General, represented the respondent, the university,[19] and Solicitor General Donald Verrilli, Jr., presented the government's stance in support of the respondent.[20]

During the beginning of the petitioner’s argument, Justices Sotomayor and Ginsburg asked questions about whether the case was moot. Specifically, they were concerned with the university's arguments that Fisher would not have earned admission regardless of her race, that she had already graduated from college, and that she only named the $100 application fee as real damages. Scalia commented that the harm of racial discrimination alone created an active controversy under the Court’s previous Equal Protection jurisprudence.[21]

Justices Scalia, Alito, and Roberts asked many questions about the definition of a “critical mass”, which Grutter named as the central measure of diversity. Scalia started calling it a “critical cloud” after the university’s lawyer failed, upon multiple requests, to define the central measure of diversity.[21] Chief Justice Roberts asked whether an applicant who was one-quarter or one-eighth Latino would be permitted by the University to check the “Latino” box.[21] Garre responded that the applicant was entitled to self-identify as any race, subject to discipline under the university's honor code, and that the University did not ever question that determination.[21]

Legal analysts concurred that the process of oral argument indicated that a majority of the justices disliked the university's position.[22]

Opinions of the Court

In a 7–1 decision, the Court vacated and remanded the Fifth Circuit's ruling. Writing for the majority, Justice Kennedy concluded that the Fifth Circuit failed to apply strict scrutiny in its decision affirming the admissions policy. Instead, he wrote, the Fifth Circuit held that Fisher could only challenge "whether the University's decision to use race as an admissions factor 'was made in good faith.' It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption".[23] Kennedy argued that per the Grutter ruling, the burden of evidence primarily lies with the university "to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity".[24]

Justice Scalia wrote a one-paragraph concurring opinion, stating that he still holds the view that he first expressed in his concurring opinion in Grutter: "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception".[25] Because the petitioner did not ask to overturn the holding in Grutter, that there is a compelling evidence in the educational benefits of diversity to justify racial preferences in university admissions, he joined with the majority in full.[26]

Justice Thomas wrote his own concurrence, stating his reasons for overturning Grutter, and ruled that the use of race in higher education admissions violated the Equal Protection Clause. Thomas concluded that Grutter was a radical departure from the Court's application of the strict scrutiny test. According to Justice Thomas, strict scrutiny had only been previously satisfied where the state actor was acting to protect national security or to remedy its own past discrimination.[27]

Additionally, comparing such university admissions with desegregation, he wrote that "there is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits".[28] He also wrote that he believed that such admissions programs may actually be more harmful: "Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates...the University’s discrimination does nothing to increase the number of blacks and Hispanics who have access to a college education generally...any blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete".[29]

In her dissenting opinion, Justice Ginsburg explained her reasons for affirming the Fifth Circuit's ruling. Noting that the university's 10% plan admitted students regardless of their race, she argued that "the University’s admissions policy flexibly considers race only as a 'factor of a factor of a factor of a factor' ... and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University's educational objectives ... As I see it, the Court of Appeals has already completed that inquiry, and its judgment, trained on this Court's Bakke and Grutter pathmarkers, merits our approbation".[30]

Back to the lower courts

In June 2013, the Supreme Court ruled the Fifth Circuit had failed to apply strict scrutiny to the university's race-conscious admissions policy and sent the case back to the Fifth Circuit court. In November, the Fifth Circuit court heard oral arguments from both sides. In their questions during the arguments, Judges Patrick Higginbotham, Carolyn Dineen King, and Emilio M. Garza focused on the way the university defines "critical mass" as well as past attempts the university has made to increase minority enrollment.[31]


On July 15, 2014, the U.S. Court of Appeals for the Fifth Circuit announced its divided decision in the case of Fisher v. University of Texas, which had been remanded to the Fifth Circuit by the Supreme Court in the previous summer. In a 2–1 decision, the Fifth Circuit ruled in favor of UT Austin. In its decision, the majority wrote, “It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity.”[32] Fisher sought a rehearing en banc with the Fifth Circuit which was denied on 12 of November in a 10-5 decision.[33] Fisher has since filled a petition for certiorari to the Supreme Court.[34]

See also


  1. ^
  2. ^ Liptak, Adam (24 June 2013). "Justices Step Up Scrutiny of Race in College Entry". New York Times. Retrieved 25 June 2013. 
  3. ^ Richey, Warren (February 21, 2012). "Affirmative action in college admissions goes back before Supreme Court". The Christian Science Monitor. 
  4. ^ Wermiel, Stephen (October 11, 2011). "SCOTUS for law students: Barbara Grutter, meet Abigail Fisher". SCOTUSblog. 
  5. ^ a b c Haurwitz, Ralph K. M. (February 21, 2012). "UT's race-conscious admission policy facing Supreme Court test". Austin American-Statesman. 
  6. ^ Jeffrey Toobin. "The Other Big Supreme Court Case". The New Yorker. 
  7. ^ a b c d e "Joint Appendix, Abigail Noel Fisher v. University of Texas at Austin (Case 11-345)" (PDF). The Supreme Court of the United States. p. 65a–66a. Retrieved October 10, 2012. 
  8. ^ a b c d e Liptak, Adam (October 15, 2011). "College Diversity Nears Its Last Stand". New York Times. Should the Supreme Court disavow it, the student body at the University of Texas and many other public colleges and universities would almost instantly become whiter and more Asian, and less black and Hispanic. 
  9. ^ a b "Fisher v. University of Texas at Austin challenges affirmative action in higher education". The Daily Texan. February 21, 2012. 
  10. ^ Abigail Fisher, et al. v. State of Texas, et al. (PDF) (No. 09-50822), United States Court of Appeals, Fifth Circuit, January 18, 2011 
  11. ^ Farmer, Liz (February 21, 2012). "U.S. Supreme Court to hear case on UT admission policies". The Daily Texan. 
  12. ^ "Order on the petition for rehearing en banc", United States Court of Appeals for the Fifth Circuit.
  13. ^ Petition for Certiorari Fisher v. University of Texas at Austin. Retrieved June 25, 2013.
  14. ^ Smith, Morgan (February 23, 2012). "One Man Standing Against Race-Based Laws". New York Times. Retrieved February 21, 2015. 
  15. ^ Barnes, Robert (February 21, 2012). "Supreme Court agrees to reconsider use of race in college admission decisions". The Washington Post. 
  16. ^ "Fisher v. University of Texas at Austin". SCOTUSblog. Retrieved March 28, 2012. 
  17. ^ Denniston, Lyle (February 21, 2012), Affirmative action review due next Term, SCOTUSblog, retrieved April 6, 2012 
  18. ^ Harrop, Froma (February 28, 2012). "Racial Preferences in College Admissions: Time to Go". Real Clear Politics. 
  19. ^ Leon Lin (October 16, 2012). "Fisher v. UT affirmative action case oral arguments heard". The Tech 132 (45). 
  20. ^ Daniel Fisher (June 19, 2013). "Supreme Court's Final Decisions Also A Verdict On SG Verrilli". Forbes. 
  21. ^ a b c d "Oral Argument Transcript", U.S. Supreme Court
  22. ^ Nick DeSantis, "Early Reactions to Fisher v Texas Arguments", Chronicle of Higher Education, October 10, 2012.
  23. ^ Fisher v. University of Texas at Austin, 570 U. S., (slip op., at 11).
  24. ^ Fisher v. University of Texas at Austin, 570 U. S., (slip op., at 13).
  25. ^ Casey Scott McKay, "Fishin' with Fisher: Determining the Depth of Deference Does Not Demand Damning Deference to A Dastardly Death", 83 Mississippi Law Journal 951 (2014).
  26. ^ Fisher v. University of Texas Austin, 570 U. S., (Scalia, J., concurring slip op., at 1).
  27. ^ Fisher v. University of Texas at Austin, 570 U. S., (Thomas, J., concurring slip op., at 4-5).
  28. ^ Fisher v. University of Texas at Austin, 570 U. S., (Thomas, J., concurring slip op., at 12).
  29. ^ Fisher v. University of Texas at Austin, 570 U. S., (Thomas, J., concurring slip op., at 17-18).
  30. ^ Fisher v. University of Texas at Austin, 570 U. S., (Ginsburg, J., dissenting slip op., at 3-4).
  31. ^ Voeller, Amanda (November 14, 2013). "Fifth Circuit hears oral arguments for Fisher v. UT case". The Daily Texan. 
  32. ^ 09-50822 5th Circuit Court of Appeals, (2014).
  33. ^ 09-50822 ON PETITION FOR REHEARING EN BANC 5th Circuit Court of Appeals, (2014).
  34. ^ “Fisher II” reaches the Court. February 11th, 2015

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