October 08, 2012

What You Need to Know About Fisher v. Texas

The U.S. Supreme Court heard arguments last fall in Fisher v. University of Texas at Austin, a case that centers on the questions of whether and how race may be used in college-admissions decisions. The court is expected to issue its ruling this spring or early summer. Wondering what this case means for colleges? You'll find answers on this page.

Who is the plaintiff, Abigail Fisher?

Ms. Fisher is a native of Sugar Land, Tex., who in 2008 was denied admission as an undergraduate applicant to the University of Texas at Austin. She recently graduated from Louisiana State University at Baton Rouge.

Why is she suing?

Ms. Fisher, who is white, is accusing the University of Texas of illegally discriminating against her because she was part of a pool of applicants who were evaluated using criteria that gave extra consideration to black and Hispanic applicants. She did not qualify for automatic entry to the university under the state’s “Top 10 Percent Plan,” which guarantees admission to any Texas public college for residents in the top tenth of their high-school class.

Hasn't this issue come up before?

Ms. Fisher’s lawsuit argues that the University of Texas violated the limits on race-conscious admissions policies set forth by the Supreme Court when it last considered them, in 2003. In Grutter v. Bollinger, which involved the policies of the University of Michigan law school, the Supreme Court held that colleges seeking to promote diversity must give “serious, good-faith consideration” to race-neutral alternatives to affirmative-action preferences.

Ms. Fisher’s lawsuit argues that Texas’ “Top 10 Percent Plan” has produced sufficient levels of diversity on the Austin campus and that the university has no need to give extra consideration to applicants based on race.

What's different now?

The Supreme Court’s decision to take up the case and consider such arguments might reflect a shift in its composition. It has become more conservative, and more hostile to racial preferences, than it was in 2003.

So what’s at stake?

The court might strike down Texas’ policies and rule that they simply violate the guidelines set forth in its past rulings. Such a decision would be bad news for the Austin campus, but, considering the distinct features of its admission system, that decision would probably have little effect on other colleges.

There is some chance, however, that the court could strike down all race-conscious admission policies at the nation’s colleges, by rejecting its own precedents holding that such policies serve a compelling government interest. Ms. Fisher’s lawyers and some conservative advocacy groups are urging the court to do just that.

What are others saying about the case?

Retain Affirmative Action—Because It's the Morally Right Thing to Do By Aaron N. Taylor

A New Kind of Affirmative Action Can Ensure Diversity By Richard D. Kahlenberg

U. of Texas Stands on Firm Legal Ground in Supreme Court Case By Ada Meloy

Toward Real Equality in Higher Education By Michele Moody-Adams

Justice and Equity Are on the Line in 'Fisher v. Texas' By Kevin Carey

Why Fisher Will Win and Texas Will Lose By Mark Bauerlein

Where the Supreme Court Justices Stand on 'Fisher v. Texas'

Eight members of the Supreme Court will decide the case. One justice is widely regarded as holding the deciding vote.

  • John G. Roberts Jr.

  • Samuel A. Alito Jr.

  • Antonin Scalia

  • Clarence Thomas

Likely to Favor Abigail Noel Fisher

These four justices are regarded as skeptical of race-conscious government policies and seen as very likely to favor Ms. Fisher. They will probably seek to abandon the 2003 Grutter v. Bollinger decision.

  • Stephen G. Breyer

  • Ruth Bader Ginsburg

  • Sonia M. Sotomayor

Likely to Favor the U. of Texas at Austin

These three justices are very likely to fully support the University of Texas at Austin and uphold race-conscious admissions policies.

  • Anthony Kennedy

The Swing Vote

Justice Kennedy has accepted the idea that narrowly tailored race-conscious admissions policies provide educational benefits that serve a government interest. But he rejected the specific policy at issue in the 2003 Grutter v. Bollinger case, saying the University of Michigan's law school gave too much weight to race in admission decisions and used "numerical goals indistinguishable from quotas."

  • Elena Kagan

On the Sideline

Justice Kagan has recused herself from the case. She was involved, in her previous position as U.S. solicitor general, in the Obama administration's submission of a brief supporting Texas when the case was before a lower court.

How We Got Here: Race-Conscious Admissions in the Courtroom