History

Fisher II is a continuation of the lawsuit initiated by Abigail Fisher, with the pertinent details available in the Fisher I pages.

This phase of the case began with the Supreme Court’s remand to the Fifth Circuit, directing it to employ the proper standards in its assessment of the Texas admissions system. That court issued its new opinion on July 15, 2014, where it once again held that UT’s admissions process was Constitutional. The Circuit Court held that the Top Ten Percent Law combined with the holistic review for the rest of admissions is narrowly tailored to UT’s goals of a diverse student body.

The Circuit Court went on to state that the Supreme Court recognized three distinct education objectives served by diversity, those being increased perspectives, which increase the quality of education through discussion; professionalism, because a diverse student body better prepares students for an increasingly global marketplace; and civic engagement, because a diverse student body fosters effective participation by members of all racial and ethnic groups in the civil life of the Nation. As far as the narrow tailoring of their analysis was concerned though, the Circuit court emphasized that they were only looking at the “narrow tailoring in UT’s use of this individualized race-conscious holistic review, applied as it is only to a small fraction of the student body as the rest is consumed by race-neutral efforts,” referring to the Top Ten Percent Law. Thus, the Circuit Court still treated the Top Ten Percent Law as a race-neutral means of achieving diversity and it only examined diversity in the context of students who got in without the aid of the Top Ten Percent Law.

The Circuit Court made the distinction of how Grutter’s holistic approach applied to all of its students, while UT’s holistic of race applied to a small percentage of the entire student body, as most are admitted through the Top Ten Percent Law. Furthermore, the Circuit Court found that the holistic approach did not serve to merely increase the number of minority students as the holistic approach was responsible for a larger percentage of the white students that got admitted than of the Hispanic or African American students. Lastly, UT was found to have exhausted many race-neutral efforts in its attempt to reach racial diversity. UT had initiated many outreach and scholarship efforts targeted at under-represented demographics, it had increased its outreach and recruitment efforts by increasing its recruitment budget and adding regional admissions centers to three cities, and it had put together a group that would visit high schools to help prospective students understand the financial support offered by UT in an effort to convince low-income students that money should not be a barrier to attending college. Ultimately the Circuit Court stressed that “’[n]arrow tailoring does not require exhaustion of every race neutral alternative,’ but rather ‘serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.’”

When it came to the Top Ten Percent Law, the Circuit Court acknowledged that it did boost “minority enrollment by skimming from tops of Texas High Schools, it does so against this backdrop of increasing resegregation in Texas public schools.” Not only this but because the Top Ten Percent Law granted admissions to any student who graduated in the top ten percent, regardless of how high of a quality of a school they graduated from, the Circuit Court found that there were students that were left out because of the Top Ten Percent Law, which left a gap in an admissions process that sought to create multi-dimensional diversity. The Circuit Court continued to treat the Top Ten Percent Law as a race neutral means of achieving diversity, but it also acknowledged that there were flaws in the system and how it also served to restrict UT from being able to focus on individuals for diversity purposes, as evidenced by the fact that Texas had amended the Top Ten Percent Law to only be able to automatically admit 75% of UT’s enrollment capacity.

Ultimately the Circuit Court found that UT’s use of race in its admissions process was narrowly tailored to meet the compelling state interest of having a diverse student body. On February 10, 2015 a petition for a writ of certiorari was filed with the Supreme Court.

The Supreme Court granted certiorari on June 29, 2015, and heard the oral argument on December 9, 2016. On June 23, 2016, it issued a 4-3 opinion in favor of UT. The majority opinion was written by Justice Kennedy, joined by Justices Ginsburg, Breyer, and Sotomayor. Chief Justice Roberts alongside Justice Thomas and Alito dissented with Justice Thomas and Alito each writing dissenting opinions. Justice Kagan did not take part in consideration or decision of the case and Justice Scalia had been a part of oral argument but had unfortunately passed away before the court issued its opinion.

The Court began its analysis by acknowledging that the Top Ten Percent Law had a larger impact on Fisher’s admission process than the holistic review process. Fisher had graduated in the top 12% of her graduating class, meaning that she was not eligible for about 80% of the slots in the incoming freshman class. But she did not challenge the Top Ten Percent Law and throughout the entire litigation process it had been treated as being a race-neutral means of achieving diversity. Ultimately the Court held that “[w]herever the balance between percentage plans and holistic review should rest, an effective admissions policy cannot prescribe, realistically, the exclusive use of a percentage plan.” Thus, the Court rejected Fisher’s argument that the Top Ten Percent Law was enough to reach racial diversity.

It found that UT’s admission process was narrowly tailored and that other suggested alternatives had been shown to not be available or workable means that UT could employ. It also emphasized that UT had an obligation to always satisfy strict scrutiny, and just because its admissions program was affirmed does not mean it can rely on that program without refining it. UT has an “ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”

In Justice Alito’s dissent, which both Chief Justice Roberts and Justice Thomas joined, he critiqued the 5th Circuit and the majority for failing to properly apply strict scrutiny. Justice Alito wanted UT to identify the compelling state interest they were seeking and how their admissions process was narrowly tailored to meet that interest. Yet because UT had said that they were seeking the education benefits of diversity, which Justice Alito compared to UT asking for the deference, the 5th Circuit had given it back in the Fisher I opinion. Because Justice Alito felt that UT had failed to state a compelling state interest, then it would be impossible to determine whether their admissions process was narrowly tailored to meet that interest and thus they failed strict scrutiny. Justice Alito also pointed out that various points in litigation UT had stated that demographic parity, classroom diversity, interracial diversity, and avoiding racial isolation were its goals, but that these goals do not provide a sufficient basis for satisfying strict scrutiny, and any argument to the otherwise “depended on a series of invidious assumptions.”

Justice Thomas joined Justice Alito’s dissent, but wrote a separate dissent to express his continuing belief that the use of race in higher education admissions decisions was “categorically prohibited by the Equal Protection Clause.”