History

In 1996 the Court of Appeals for the 5th Circuit issued an opinion in Hopwood v. Texas which struck down the admissions program used by the University of Texas at Austin (UT). The panel held that the fragmented Bakke opinion did not constitute a binding holding and that UT could “not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body.” Because of this decision Texas implemented their Top Ten Percent Law which granted automatic admissions to any state university if a student managed to graduate in the top ten percent of their graduating high school. A large reason for the implementation of the law was to increase enrollment of underrepresented minorities into universities.

The Top Ten Percent Law became the way most students enrolled at the two prestige Texas universities, UT and Texas A&M. In 2003, in the wake of Grutter v. Bollinger, which upheld race-conscious admissions program, UT revised its policies and began to again use race in its admissions decisions. UT’s incoming freshman student body was admitted predominantly through the Top Ten Percent Law, but for those students who did not fall within that law, UT would use an Academic Index alongside a Personal Achievement Index (AI/PAI to determine admissions. The Academic Index considered GPA, class rank, and standardized test scores in order to determine whether or not students would qualify for the next step of the admissions process. At the next step of the admissions process was the Personal Achievement Index which was a holistic review of applications intended to identify and reward students whose merit as applicants was not adequately reflected by their class rank and test scores. The Personal Achievement Index did take race into consideration, and if students advanced past the Personal Achievement Index stage of the admissions process then they would be granted admissions into UT.

In 2008 Abigail Noel Fisher applied to UT alongside Rachel Multer Michalewicz, both were denied admissions. They proceeded to file a complaint against UT in the U.S. District Court for the Western District of Texas. In their complaint they sought to stop UT from using race as a factor in their admissions process as well as asking the court for a declaratory judgment stating that UT’s use of race in their admissions process was against the U.S. Constitution.

The Western District of Texas issued its opinion on August 17, 2009 where it upheld UT’s admissions program. In its opinion the District Court stressed how 80% of UT’s incoming freshman were admitted into UT through the Top Ten Percent Plan which all parties and the Court treated as a race neutral means of achieving diversity. Furthermore, for the 20% of students who were admitted using the AI/PAI plan, the District Court stated that it had “difficulty imagining an admissions policy that could more closely resemble the Michigan Law School’s admission policy upheld and approved by the Supreme Court in Grutter.” Thus, the District Court found that UT’s admission program was constitutional, and an appeal to the 5th Circuit was filed soon after the decision was made.

The 5th Circuit issued its opinion on the Fisher case on January 18, 2011 where it also upheld UT’s admissions program. The Circuit Court answered the question of whether UT had taken a serious, good faith consideration before resorting to using race as a factor in admissions decisions.

The Circuit Court took a more in depth look at Texas’s Top Ten Percent Law, acknowledging its origins as a law created to increase minority enrollment into universities. The Circuit Court found that “if the Top Ten Percent Law were able to serve the University’s interests ‘about as well’ as a race-conscious admission, without differentiating between students on the basis of race, then it would render UT’s current admissions program unconstitutional.” The reason for why the Circuit Court did not find that the Top Ten Percent Law worked “about as well” as a race-conscious admissions program was because it did not “perform well in the pursuit of the diversity Grutter endorsed.” The Circuit Court recognized that while the Top Ten Percent Law did increase overall minority enrollment, the students were clustered in certain programs, which the Circuit Court thought limited the beneficial effects of educational diversity. Thus, a holistic review approach, such as the one in Grutter, could help solve this problem, but the Top Ten Percent Law, by itself, could not.

The Circuit Court also determined that while the Top Ten Percent Law had increased minority enrollment, critical mass had not yet been reached. This was in part because of how diverse Hispanic and African American students could be when they came from different backgrounds and “a university must be sensitive to important distinctions within these broad groups.” Furthermore, while increased minority enrollment into UT had occurred, individual classrooms were not seeing as much diversity, and the Circuit Court thought that UT was allowed to use race-conscious admissions measures in order to obtain the full educational benefits of diversity.

Thus the 5th Circuit upheld UT’s admissions program, and on September 15, 2011 a petition for writ of certiorari was filed to the U.S. Supreme Court.

Oral arguments were heard on October 10, 2012 and the Court issued its opinion on June 24, 2013. The majority opinion was written by Justice Kennedy with Justices Scalia and Thomas writing concurrences, Justice Ginsburg wrote a dissent, and Justice Kagan did not take part given her prior involvement in the case while Solicitor General.

The Court ultimately remanded the case to the 5th Circuit saying that the 5th Circuit had erred in holding that “petitioner could challenge only ‘whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith.” The Court stressed that “Grutter made clear that racial ‘classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.’” Thus UT could be allowed to use race as a consideration in its admissions process, but if it chose to do so it would have to survive strict scrutiny analysis.

The Court never reached the merits of the case as the entire opinion dealt with how the Fifth Circuit did not properly analyze UT’s admissions program under strict scrutiny analysis, and thus remanded the case to the Fifth Circuit for further proceedings consistent with the Supreme Court opinion.