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.|
|Citations||570 U.S. ___ (more)|
|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.|
|Majority||Kennedy, joined by Roberts, Scalia, Thomas, Breyer, Alito, Sotomayor|
|Kagan took no part in the consideration or decision of the case.|
|U.S. Const. amend. XIV, Grutter v. Bollinger|
Fisher v. University of Texas 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 and Regents of the University of California v. Bakke, to the University's admissions program. The Supreme 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.
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 those who feared that the Court would end affirmative action.
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 from the case. 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. 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.
Applicants who, like Fisher, fail to graduate in the top 10% of their high schools, have a further opportunity to gain admission to the University by scoring highly in a process which evaluates their talents, leadership qualities, family circumstances and race. Fisher had a grade point average of 3.59 (adjusted to 4.0 scale) and was in the top 12% of her class at Stephen F. Austin High School. 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). The 25th and 75th percentiles of the incoming class at UT-Austin were 1120 and 1370. She was involved in the orchestra and math competitions and volunteered at Habitat for Humanity.
During the case proceedings, Fisher enrolled at Louisiana State University, where she was in her final year as an undergraduate in 2012. In 2011, Michalewicz withdrew from the case, leaving Fisher as the sole plaintiff.
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. That decision was affirmed by a Fifth Circuit panel composed of judges Patrick Higginbotham, Carolyn Dineen King and Emilio M. Garza. Higginbotham, in his ruling, 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."
In September 2011, lawyers representing Fisher filed petition seeking review from the Supreme Court. On February 21, 2012, the court granted certiorari in Fisher v. University of Texas. Justice Elena Kagan recused herself from the case and did not participate in the court's discussions. Kagan's recusal is probably due to her involvement with the case while she was Solicitor General.
Amicus briefs have been filed by Teach for America, the Asian American Legal Foundation, the Asian Pacific American Legal Center, 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 others.
The case was on the Supreme Court calendar for the term beginning in October 2012. Some concerns were expressed that if the Court overruled Grutter, it would likely end affirmative action at public universities in the United States. 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.
On October 10, 2012, the Supreme Court heard oral arguments in the case. Bert Rein represented the petitioner, Gregory Garre represented the respondent university, and Solicitor General Donald Verrilli argued in support of the respondent.
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.
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. 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. Mr Garre responded that the applicant is entitled to self-identify any race, subject to discipline under the university's honor code, and the University did not ever question that determination.
Legal analysts concurred that the process of oral argument indicated that a majority of the justices disliked the university's position.
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." Kennedy argued that per the Grutter v. Bollinger 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."
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 v. Bollinger: "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception". 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.
Justice Thomas issued his own concurring opinion, stating his reasons for overturning Grutter v. Bollinger, and rule that the use of race in such higher education admissions decisions violates the Equal Protection Clause. Comparing such university admissions with desegregation cases, 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." 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".
In her dissenting opinion, Justice Ginsburg explained her reasons for affirming the Fifth Circuit's ruling. Noting that the university's 10 percent 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".
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 King and Emilio Garza focused on the way the University defines “critical mass,” as well as past attempts the University has made to increase minority enrollment. 
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- "Joint Appendix, Abigail Noel Fisher v. University of Texas at Austin (Case 11-345)". The Supreme Court of the United States. p. 65a–66a. Retrieved October 10, 2012.
- Liptak, Adam (October 15, 2011). "College Diversity Nears Its Last Stand". The New York Times. Archived from the original on October 9, 2012. "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."
- "Fisher v. University of Texas at Austin challenges affirmative action in higher education". The Daily Texan. February 21, 2012.
- Abigail Fisher, et al. v. State of Texas, et al. (No. 09-50822), United States Court of Appeals, Fifth Circuit, January 18, 2011
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- Order on the petition for rehearing en banc
- Petition for Certiorari Fisher v. University of Texas. Retrieved June 25, 2013.
- Barnes, Robert (February 21, 2012). "Supreme Court agrees to reconsider use of race in college admission decisions". The Washington Post. Archived from the original on October 9, 2012.
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- Denniston, Lyle (February 21, 2012), Affirmative action review due next Term, SCOTUSblog, retrieved April 6, 2012
- Harrop, Froma (February 28, 2012). "Racial Preferences in College Admissions: Time to Go". Real Clear Politics. Archived from the original on October 9, 2012.
- Oral Argument Transcript
- Early Reactions to Fisher v Texas Arguments, Chronicle of Higher Education
- Fisher v. University of Texas, 570 U. S., (slip op., at 11).
- Fisher v. University of Texas, 570 U. S., (slip op., at 13).
- Fisher v. University of Texas, 570 U. S., (Scalia, J., concurring slip op., at 1).
- Fisher v. University of Texas, 570 U. S., (Thomas, J., concurring slip op., at 12).
- Fisher v. University of Texas, 570 U. S., (Thomas, J., concurring slip op., at 17-18).
- Fisher v. University of Texas, 570 U. S., (Ginsburg, J., dissenting slip op., at 3-4).
- Voeller, Amanda (November 14, 2013). "Fifth Circuit hears oral arguments for Fisher v. UT case". The Daily Texan.
- Pacelli, Kimberly A. (2011). "Fisher v. University of Texas at Austin: Navigating the Narrows between Grutter and Parents Involved". Maine Law Review 63 (2): 569–592.
- Robinson, Reginald Leamon (2012). "Primal Fear: A Critical Re-Analysis of Why Racial Minorities Really Feared Grutter, Gratz, and Fisher". Working Paper. SSRN 2011254.
- Thompson, Joshua Paul; Schiff, Damien M. (2011). "Divisive Diversity at the University of Texas: An Opportunity for the Supreme Court to Overturn its Flawed Decision in Grutter". Texas Review of Law & Politics. Forthcoming. SSRN 1803475.
- Vinay Harpalani, Diversity Within Racial Groups and the Constitutionality of Race-Conscious Admissions, 15 U. PA. J. CONST. L. 163 (2012). Cited in Society of American Law Teachers (S.A.L.T.) amicus brief to U.S. Supreme Court in Fisher v. University of Texas, No. 11-345 (argued October 10, 2012). Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2087731
- Vinay Harpalani, Fisher’s Fishing Expedition, 15 U. PA. J. CONST. L. HEIGHT. SCRUTINY (forthcoming 2013). Invited commentary on oral arguments in Fisher v. University of Texas, No. 11-345 (argued October 10, 2012). Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2185453
- Slip opinion from the U.S. Supreme Court
- Text of Fisher v. University of Texas, 570 U.S. ___ (2013) is available from: Cornell Findlaw Justia