June 24, 2013

What You Need to Know about Fisher


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

Audio and Documents from the Supreme Court Arguments

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. This page provides a background on the case and what it means for higher education.

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.

Read about how Ms. Fisher’s case is reverberating among students at the University of Texas.

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.

Read about Texas’ Top 10-Percent Plan, which automatically admits top students from the state's high schools to the flagship university.

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.

Read the briefs in the case and hear the oral arguments for Ms. Fisher’s case and the university’s response.

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.


Click below to read the briefs filed in Fisher v. Texas, which outline the legal arguments provided by each side. Click here for "friend of the court" briefs filed by hundreds of politicians, universities, organizations and state governments (more than 4 to 1 in favor of the University of Texas), compiled by the American Bar Association.

Attorneys for Abigail Fisher argue that UT's admissions policies violate the equal protection clause of the 14th amendment.

The University claims that the Supreme Court's previous decisions allow for a "highly individualized consideration of race" in admissions.

Below are selections from the oral arguments at the Supreme Court on October 10, 2012. For the full transcript and recording, click here. Excerpts are courtesy of the Oyez project at Chicago-Kent School of Law.

One of the few times Justice Kennedy tipped his hand was in an exchange with the university’s lawyer, Gregory G. Garre, in which he argued that Texas’ willingness to give extra consideration to black and Hispanic applicants from economically privileged backgrounds suggests that, in its admissions process, “what counts is race above all.”


In a back-and-forth with Donald B. Verrilli, Jr., the U.S. Solicitor General who argued on behalf of the university, Justice Kennedy jumped into a hypothetical about two applicants who are otherwise identical, one white and one black.


The lawyer for Ms. Fisher, Bert W. Rein, told the Court that he believes colleges have taken the Grutter decision as a “green light” to engage in “an abominable kind of sorting out” based on race, which has to “be corralled.”


Justice Scalia objected to the standard, set out in the Grutter decision, that racial preference in admissions can cease when there is a "critical mass" of minority students.