Fisher Case Puts Affirmative Action Back in the Spotlight

This past week, the United States Supreme Court heard Fisher v. University of Texas. On the surface, the case is about the college admissions process as it pertains to one girl at one university, but when the court rules, it will undoubtedly have a much wider impact on the role of race in college admissions across the country.

Abigail Fisher, now 22, brought the lawsuit against the University of Texas after being denied admission as an undergraduate to the state’s flagship public university on the grounds that consideration of race in college admissions violates the Equal Protection Clause of the Fourteenth Amendment. Fisher asserted that her rejection from the college was because she is white, and that less qualified students of color were admitted in her place. Her case cites her extracurricular activities – soccer and cello – and that her parents had attended the school as factors that should have set her above other applicants.

In response, the University of Texas asserted that Fisher was not eligible for admission under academic guidelines that had nothing to do with race. Texan universities use a program called The Top Ten Percent Plan to determine admission to their public universities. The top ten percent – in academics and test scores – of each graduating high school class in the state are automatically admitted to the public universities, should they apply. The university argues that because many school districts in the state remain de facto segregated, this policy allows for greater diversity in university classrooms. The remaining open spots in freshmen classes are then determined based on other non-academic merits, including racial diversity. Since Fisher was not automatically eligible for admission based on her grades and test scores under the Top Ten Percent Plan, other admissions factors were taken into consideration for her application.

The United States District Court ruled in favor of the University of Texas in this case in 2009, as did the Fifth Circuit Court of Appeals in 2011. As a result, Fisher has brought the case to the United States Supreme Court.

The Supreme Court’s decision will clarify the role that race is allowed to play in college admissions. The last time the court heard a case on affirmative action was in 2003, in Grutter v. Bollinger. The court ruled then that the University of Michigan’s law school could take “soft variables” like race into account in admissions, but that using quotas for determining the racial makeup of an entering class was unconstitutional. The court upheld “the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body” as legal.

When the case was presented before the court on Oct. 10, Chief Justices John Roberts, Samuel Alito and Antonin Scalia questioned the methodology of the University’s consideration of race, specifically as its policies relate to creating a “critical mass” of minority students on campus, using the framework from the Grutter ruling. Justices Ruth Ginsberg and Sonia Sotomayor questioned whether Fisher even had a case, given that she had already graduated from college – Louisiana State University – and that she did not meet the threshold of academic eligibility when she had originally applied to UT Austin. Fisher’s case also only claims the application fee of $100 as monetary damages from not being admitted to the University. Justice Elena Kagan recused herself from the case, having worked on it in lower courts when she was Solicitor General.    
If the Supreme Court rules in favor of Fisher and overturns Grutter, it is likely that affirmative action in public universities will be ended. The court is expected to rule on the case next June.