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The Challenge
The newsletter of the ISBA’s Standing Committee on Racial and Ethnic Minorities and the Law

January 2017, vol. 27, no. 2

SCOTUS upholds affirmative action program at University of Texas at Austin

This spring, many in legal and higher education circles anticipated the opinion of the Supreme Court of the United States in Fisher v. University of Texas at Austin, No. 14-981. On either side of the aisle on the issue of affirmative action in college admissions, spectators awaited the decision with eagerness and with dread, perhaps in equal measure. On June 23, 2016, the Court issued its opinion in Fisher, upholding the University’s plan in the face of strict scrutiny review. For these litigants, this was the second time before the justices of the Court, the case having previously been remanded to the United States Court of Appeals for the Fifth Circuit in 2013.1

This litigation was initiated in Texas after petitioner Abigail Fisher applied for admission to University of Texas at Austin, the state’s flagship public university, seeking a spot in the 2008 freshman class. Ms. Fisher has explained that although she had been a good student with a list of extracurricular activities, she noticed that other, seeming less-qualified students had been admitted. Fisher argued that the University had denied her admission in favor of less qualified minority applicants, which amounted to unlawful discrimination against her based on her race.2 Ultimately, the question presented in the case was “whether the race-conscious admissions program at the University of Texas is lawful under the Equal Protection Clause.”3

There was no dispute before the Court that Texas uses a system that offers slots at its state schools to all students who graduate in the top ten percent of his or her Texas high school class. It was also undisputed that, at the time that Ms. Fisher applied for admission, she was not in the top 10 percent of her high school class, and therefore not automatically offered a slot. She competed for the remaining slots in the freshman class pursuant to a revised University admissions process that called for “holistic, full-file review.”4 After the Supreme Court remanded the case to the Court of Appeals to apply the correct legal standard, the Court of Appeals for the Fifth Circuit reassessed the case and again affirmed the judgment of the District Court for the University.5

The University’s holistic review process had a considered history. In the 1990s, in response to a series of opinions issued by the federal courts, the State of Texas had enacted legislation guaranteeing admission at any of the state’s public universities to students graduating in the top 10 ten percent of a given class at a Texas high school.6 Years after the law went into effect in 1998, the Court’s decision in Grutter v. Bollinger upheld a challenged admissions program used by the University of Michigan Law School, which employed “a system of holistic review—a system that did not mechanically assign points but rather treated race as a relevant feature within the broader context of a candidate’s application.”7 In response to Grutter, the University of Texas-Austin went on to develop and adopt a system that would “take race into consideration as one of “the many ways in which [an] academically qualified individual might contribute to, and benefit from, the rich, diverse, and challenging educational environment of the University.”8

Although the University did begin in 2004 to fill some of the slots in its classes using the holistic review process,9 by the time Ms. Fisher applied for admission in 2007, the Top Ten plan played a more significant factor in whether or not she would be admitted, as approximately 75 percent of each freshman class was filled by students who had guaranteed slots. Justice Kennedy explained that, “[a]s a practical matter, this 75 percent cap, which has now been fixed by statute, means that, while the Plan continues to be referenced as a ‘Top Ten Percent Plan,’ a student actually needs to finish in the top seven or eight percent of his or her class in order to be admitted under this category.”10 In this litigation, Fisher did not challenge the Plan, despite the fact that the plan was, in fact, intended to help promote racial and ethnic diversity in Texas colleges and universities.11 Fisher challenged only the legality of the holistic review process.

In holding that the University’s holistic review process did not amount to unlawful discrimination in violation of the Equal Protection Clause, the majority opinion noted that, “although admissions officers can consider race as a positive feature of a minority student’s application, there is no dispute that race is but a ‘factor of a factor of a factor’ in the holistic-review calculus. Furthermore, consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities.”12 Phrased another way, “Because petitioner did not graduate in the top 10 percent of her high school class, she was categorically ineligible for more than three-fourths of the slots in the incoming freshman class.13 The Court rejected all four of Ms. Fisher’s arguments against the portion of the University’s admissions process that uses holistic review.14

In upholding the University’s process against Ms. Fisher’s challenge, the Court took care not to suggest that the University’s holistic review process was receiving any kind of permanent stamp of approval.

The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary. The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.15

Notably, while the majority opinion, authored by Justice Kennedy, described the challenged admissions process as “race conscious,” Justice Alito’s dissenting opinion described the program as “race-based.”16 This difference in description highlights a fundamental difference in the way that the majority and the dissent view any consideration of race in the admissions process. While the majority opinion noted that the person making the final decision on admission for applicants being considered under the holistic review process was not aware of the race of the applicant,17 Justice Alito’s dissenting opinion rejected that view, instead insisting that “[b]ecause an applicant’s race is identified at the front of the admissions file, reviewers are aware of it throughout the evaluation.”18 According to the dissent, “Consideration of race therefore pervades every aspect of UT’s admissions process.”19 Justice Alito’s dissent also asserts that the admissions program as a whole is intended “to increase the number of African–American and Hispanic students by giving them an admissions boost vis-à-vis other applicants.” Justice Alito writes, “Given a limited number of spaces, providing a boost to African–Americans and Hispanics inevitably harms students who do not receive the same boost by decreasing their odds of admission.”20

Justice Alito’s dissenting opinion also rejects the University’s use of race in admissions in part based on an argument that the University’s admissions process discriminates against Asian-Americans, which Justice Alito calls “particularly troubling” in light of a history of racial discrimination in education against Asian Americans. Justice Alito cites Gong Lum v. Rice, 275 U.S. 78, 85–86 (1927), an early Supreme Court decision upholding the application of “separate but equal” to the education offered to a Chinese citizen of the United States.21

The striking contrast between the manner in which the majority and the dissent view the consideration of race as a factor in admissions is alarmingly difficult to reconcile with the notion of an America that has—or can—come to terms with a history of legally sanctioned racism. That any of our esteemed Justices might refuse to see race, or flatly decline to value diversity, inspires a justified fear that America might never be willing to face the racism that has pervaded so much of our history, up to and including the Supreme Court, as reflected in decisions such as Gong Lum. The members of our judiciary view race—and the impact of racism and segregation – from such fundamentally different perspectives that it can appear impossible to imagine that each side is actually observing the same American landscape. For now, perhaps those of us who see value, not discrimination, in diversity can find promise in this line of the dissent, in hopes that those who see no value in diversity might take it to heart: “History should teach greater humility.”22


1. Fisher v. University of Tex. at Austin, 570 U.S. ––––, 133 S.Ct. 2411 (2013) (Fisher I).

2. Fisher v. Univ. of Texas at Austin, 136 S. Ct. 2198, 2204 (2016)

3. Id.

4. Id. at 2202.

5. Fisher, 758 F.3d 633 (5th Cir. 2014).

6. Tex. Educ.Code Ann. § 51.803 (West Cum. Supp. 2015).

7. Grutter v. Bollinger, 539 U.S. 306, 337 (2003)

8. Fisher, 136 S. Ct. 2198, 2206 (2016)

9. Id.

10. Id.

11. Id. at 2209.

12. Id. at 2207; Fischer v. U. of Texas at Austin, 645 F.Supp.2d 587, 608 (W.D. Tex. 2009)

13. Fisher, 136 S. Ct. 2209.

14. Id. at 2210-14.

15. Id. at 2214-15.

16. Id. at 2227, 2240.

17. Id. at 2207.

18. See also 645 F.Supp.2d 597.

19. Id.

20. Fisher, 136 S. Ct. 2198, 2227 dissent, fn. 4, (internal marks and citations omitted).

21. Gong Lum v. Rice, 275 U.S. 78, 85–86 (1927) (“The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, whether white, brown, yellow, or black.”)

22. Fisher, 136 S. Ct. 2228 (quoting Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 609 (1990) (O’Connor, J., dissenting)).