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Will Fisher v. Texas Clarify University Diversity?

October 20, 2012

Abigail Fisher applied to the University of Texas at Austin. She was not admitted.  Fisher knew of minority students who were admitted into UT but had lower GPA’s, SAT I’s, and SAT II’s than Fisher.  Fisher sued UT for failure to give her a fair chance of admittance. Fisher’s counsel claimed UT’s admissions process used Fisher’s race against her, stating that“[Fisher was] denied equal treatment. It was a Constitutional injury.”  Requested damages would be the cost of Fisher’s application ($100) and would additionally include the difference between Fisher’s tuition at the school she attended instead, Louisiana State University, and UT’s tuition in terms of the tuition cost. Also included in damages sought were the future income and job opportunies that Fisher lost when she was not able to graduate from UT.  

However, Fisher was offered a summer admissions program; where she could matriculate into UT after passing UT’s summer semester standards.  Also, there were minority students that scored higher than Fisher that also were denied admission to UT.  In the Supreme Court Oral argument, UT asserted that Fisher would not have been admitted even if their holistic admissions process did not use race as a factor. 

Still, UT’s ability to use race as a factor when determining admittance could be unconstitutional if their admittance process violates the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964, which provides, “[N]o person shall on the ground of race or color be excluded from participating in any program receiving federal financial assistance.”  These issues have been argued in the Supreme Court’s previous rulings on Grutter and Bakke.  The Supreme Court’s ruling on Fisher v. UT will in large part be structured by how UT violated the permitted use of race set forth in Bakke and Grutter.

Regents of the University of California (UC Davis Medical) v. Allan Bakke:

Justice Powell’s decision in Bakke stated that attaining a diverse student body is an interest that survives scrutiny: “[T]he nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation.”  However, Powell also emphasized the state interest in diversity is broader than racial and ethnic origins. Race and ethnic origins are only a single (though important) factor.  Thus, the Supreme Court ruled it unconstitutional to set quotas of students from a particular race that must be accepted, however the Supreme Court specifically condoned the use of race as a factor in determining future admissions decisions for the purpose of increasing student diversity.

Barbra Grutter v. Lee Bollinger et al. (University of Michigan Law):

In Grutter, the US Supreme Court ruled diversity as a compelling state interest justifying narrowly tailored racial preference in the student body selection—as long as race is used as part of holistic review that takes into account many other attributes.  In her decision, Justice O’Connor claimed that diversity in school enriches the educational experience for all the students and prepares American students for interactions in a heterogeneous world.

Abigail Fisher v. University of Texas at Austin, et al.

Texas’s legislature passed Texas House Bill 588, guaranteeing automatic admission to all state-funded universities for Texas students graduating in the top 10% of their class. Roughly 80% of UT’s freshmen enroll under the “ten-percent rule.”  Fisher’s counsel argued that the ten-percent plan meets a critical mass of diverse students and UT ignores any end where race would not be needed to attain a critical mass of diverse student.  Rein claims that UT gratuitously and unconstitutionally gives Black and Hispanic applicants preference at admissions.

UT asserts that accepting the top 10% of a class from a racially identifiable high school could look like diversity “on paper,” but it does not guarantee racial diversity that produces benefits on campus.  UT wants representatives and different viewpoints from individuals within the same racial group.  UT’s plan does not set aside spots for minorities but continues to use race as a factor to admit people from different perspectives.

Justice Scalia questions whether UT is even seeking racial diversity then, if it is merely different viewpoints that UT wants to foster.  But UT argued that they do take race into account as part of a holistic review; instead, they want diversity within race.  UT does not want only one particular background within a race and the top 10% plan does not foster diversity; UT needs their holistic review to ascertain diversity. 

ACLU Racial Justice Project Senior Staff Attorney Courtney Bowie and the Author of, “Mismatch” Stuart Taylor both think the Supreme Court will rule against UT: 5-3.  Justice Elena Kagan has recused herself from the decision and Justice Roberts is a possible swing vote, meaning that this could be  a 4-4 tie. If that is the case ,the Fifth Circuit United States Court of Appeals decision in favor of UT would be upheld.

For more information and analysis on this case see: