Fisher v. University of Texas
|Fisher v. University of Texas|
Supreme Court of the United States
|Full case name||Abigail Noel Fisher, Petitioner v. University of Texas at Austin, et al.|
|Kagan took no part in the consideration or decision of the case.|
Fisher v. University of Texas is a case currently before the United States Supreme Court concerning the affirmative action admissions policy of the University of Texas at Austin. The case, brought by undergraduate Abigail Fisher in 2008, asks that the Court either declare the admissions policy of the University inconsistent with, or entirely overrule Grutter v. Bollinger, a 2003 case in which the Supreme Court ruled that race could play a limited role in the admissions policies of public universities. An overruling of Grutter could end affirmative action policies in admissions at U.S. public universities.
The United States District Court heard Fisher v. University of Texas in 2009 and upheld the legality of the University's admission policy. The case was appealed to a three-judge panel from 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 has recused herself from the case.
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 its Top Ten Percent plan, 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 will 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 is on the Supreme Court calendar for the term beginning in October 2012. If the Court overrules Grutter, it would likely end affirmative action at public universities in the United States. Some argue 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 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.
- 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."
- Richey, Warren (February 21, 2012). "Affirmative action in college admissions goes back before Supreme Court". The Christian Science Monitor.
- Wermiel, Stephen (October 11, 2011). "SCOTUS for law students: Barbara Grutter, meet Abigail Fisher". SCOTUSblog.
- Haurwitz, Ralph K.M. (February 21, 2012). "UT's race-conscious admission policy facing Supreme Court test". Austin American-Statesman.
- Toobin, Jeffrey. "The Other Big Supreme Court Case". The New Yorker. Archived from the original on October 9, 2012.
- "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.
- "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
- Farmer, Liz (February 22, 2012). "U.S. Supreme Court to hear case on UT admission policies". The Daily Texan.
- Order on the petition for rehearing en banc
- 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.
- "Fisher v. University of Texas at Austin". SCOTUSblog. Archived from the original on October 9, 2012. Retrieved March 28, 2012.
- 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
- 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