Fisher v. University of Texas

Fisher v. University of Texas at Austin (UT Austin) involves UT Austin’s long negotiation with the courts about its admissions policies. In 1996, the Fifth Circuit invalidated the university’s race-conscious admissions program. In its place, the university developed a procedure having two basic, race-blind components. First, the Texas Legislature directed that any student graduating in the top 10% of a Texas high school meeting certain requirements must be automatically admitted to the university. Second, for other applicants, the university combined academic with other holistic considerations by means of a grid. In simplified form, the x-axis of that grid plots the applicant’s “Academic Index” (meaning test scores and academic performance in high school), while the y-axis plots a “Personal Achievement Index,” which takes account of extracurricular activities, special circumstances, and the like. Applicants are admitted to particular colleges depending on whether their scores fall above or below a line on the grid. As a result of these two measures, racial diversity at the university approximated the level achieved by its previously-invalidated race-conscious program.

In 2003, in Grutter v. Bollinger, 539 U.S. 306 (Grutter), the Court upheld the University of Michigan Law School’s holistic approach, under which race was one of many “plus” factors relevant to an application, a system adopted so that the Law School could achieve a “critical mass” of minority students. Grutter announced that the Court would defer to the “university’s educational judgment that ... diversity is essential to its educational mission.” The Court was satisfied that the plus-factor system was narrowly tailored to achieve that goal, and that the Law School had “sufficiently considered workable race-neutral alternatives.”  

In 2004, in the wake of Grutter, UT Austin decided to resume race-conscious admissions by making an applicant’s race an important factor in the Personal Achievement Index. When a White applicant who was denied admission then sued, the Fifth Circuit, in 2011, upheld the constitutionality of the university’s use of race. It concluded that courts must defer to the university both about whether diversity will further its educational goals and about whether a race-conscious admissions policy is narrowly tailored to achieve that objective. The Court of Appeals believed that selecting a means of achieving diversity was a matter for the university’s “presumably expert academic judgment.” For that reason, the Court would only “ensure that [the] decision to adopt a race-conscious admissions policy followed from ... good faith consideration.”

The Supreme Court rejected that view. In June 2013, in a 7-1 decision authored by Justice Kennedy, the Court held that “[t]he University must prove that the means chosen by the University to attain diversity are narrowly tailored to achieve that goal. On this point, the University receives no deference.” Rather, the court must undertake its own inquiry “into whether a university could achieve sufficient diversity without using racial classifications,” and “must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” The Court emphasized that “[t]he higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other contexts.” The Court therefore vacated the judgment of the Fifth Circuit, and remanded the case so that the Fifth Circuit could evaluate the UT Austin’s admissions program under the right standard. Because the issue was not raised by the parties, the Court declined to reconsider Grutter’s holding that pursuit of diversity is a compelling state interest.

Source: Valachovic, R, Knight, Y. Implications of Fisher v. University of Texas at Austin [Unpublished memorandum]. 2013. Washington, DC: American Dental Education Association.

Updated July 8th, 2014