Fisher v. University of Texas
Argued October 10, 2012
Decided June 24, 2013
Full case nameAbigail Noel Fisher, Petitioner v. University of Texas at Austin, et al.
Docket no.11-345
Citations570 U.S. 297 (more)
133 S. Ct. 2411; 186 L. Ed. 2d 474
ArgumentOral argument
Case history
PriorInjunction denied, 556 F. Supp. 2d 603 (W.D. Tex. 2008); summary judgment granted, 645 F. Supp. 2d 587 (W.D. Tex. 2009); affirmed, 631 F.3d 213 (5th Cir. 2011); rehearing en banc denied, 644 F.3d 301 (5th Cir. 2011); cert. granted, 565 U.S. 1195 (2012).
SubsequentSee Fisher v. University of Texas (2016)
The Fifth Circuit Court of Appeals failed to apply strict scrutiny in its decision affirming the admissions policy. The decision is vacated, and the case remanded for further consideration.
Court membership
Chief Justice
John Roberts
Associate Justices
Antonin Scalia · Anthony Kennedy
Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Case opinions
MajorityKennedy, joined by Roberts, Scalia, Thomas, Breyer, Alito, Sotomayor
Kagan took no part in the consideration or decision of the case.
Laws applied
U.S. Const. amend. XIV, Grutter v. Bollinger

Fisher v. University of Texas, 570 U.S. 297 (2013), also known as Fisher I (to distinguish it from the 2016 case),[1] is a United States Supreme Court case concerning the affirmative action admissions policy of the University of Texas at Austin. The Supreme Court voided the lower appellate court's ruling in favor of the university and remanded the case, holding that the lower court had not applied the standard of strict scrutiny, articulated in Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1978), to its admissions program. The Court's ruling in Fisher took Grutter and Bakke as given and did not directly revisit the constitutionality of using race as a factor in college admissions.[2]

The suit, brought by undergraduate Abigail Fisher in 2008, asked that the Court declare the university's race-conscious admissions inconsistent with Grutter, which had in 2003 established that race had an appropriate but limited role in the admissions policies of public universities. While reasserting that any consideration of race must be "narrowly tailored", with Fisher the Court did not go on to overrule Grutter, a relief for political activists who feared that the Court would end affirmative action.[3]

The United States District Court heard Fisher v. University of Texas in 2009 and upheld the legality of the university's admission policy in a summary judgment. The case was appealed to the Fifth Circuit which also ruled in the university's favor. The Supreme Court agreed on February 21, 2012, to hear the case. Justice Elena Kagan recused herself because she served as the Solicitor General when the Department of Justice filed an amicus curiae, or friend-of-the-court, brief in the Fisher case when it was pending in the U.S. Court of Appeals for the Fifth Circuit. On June 24, 2013, the Fifth Circuit's decision was vacated, and the case remanded for further consideration in a 7–1 decision, with Justice Ruth Bader Ginsburg dissenting. Justices Antonin Scalia and Clarence Thomas filed concurring opinions.

Applying the Supreme Court's 2013 decision, the Fifth Circuit once again found for UT Austin in 2014. Fisher again appealed the Fifth Circuit's decision, and in 2016 the Supreme Court upheld the lower court in a 4–3 decision.


Plaintiffs Abigail Noel Fisher and Rachel Multer Michalewicz applied to the University of Texas at Austin in 2008 and were denied admission. The two women, both white, filed suit, alleging that the university had discriminated against them on the basis of their race in violation of the Equal Protection Clause of the Fourteenth Amendment.[4] At the time that the initial lawsuit was filed, the University of Texas at Austin accepted students in the top 10% of each Texas high school's graduating class, regardless of their race; under Texas House Bill 588, 81% of 2008's freshman class were admitted under the plan.[5] (Starting with the fall 2010 admission class, Senate Bill 175 adjusted this rule to the top 7 percent, but with no more than 75 percent of freshman slots filled under automatic admissions.)[6]

Applicants who, like Fisher, failed to gain acceptance by automatic admissions can still gain admission by scoring highly in a process that evaluates their talents, leadership qualities, family circumstances, and race.[7][8] Fisher had a grade point average of 3.59 (adjusted to a 4.0 scale)[9] and was in the top 12% of her class at Stephen F. Austin High School.[9] She scored 1180 on her SAT (measured on the old 1600-point scale, because UT Austin did not consider the writing section in its undergraduate admissions decision for the 2008 incoming freshman class).[9] The 25th and 75th percentiles of the incoming class at UT-Austin were 1120 and 1370 respectively.[9] She was involved in the orchestra and math competitions and volunteered at Habitat for Humanity.[9]

During the case proceedings, Fisher enrolled at Louisiana State University, from which Fisher graduated in 2012 with a degree in finance.[10][11] In 2011, Michalewicz withdrew from the case, leaving Fisher as the sole plaintiff.[7][11]

Lower courts

In 2009, United States District Court judge Sam Sparks upheld the university's policy, finding that it meets the standards laid out in Grutter v. Bollinger.[10] That decision was affirmed by a Fifth Circuit panel composed of judges Patrick Higginbotham, Carolyn Dineen King and Emilio M. Garza. In his ruling, Higginbotham wrote that the "ever-increasing number of minorities gaining admission under this 'Top Ten Percent Law' casts a shadow on the horizon to the otherwise-plain legality of the Grutter-like admissions program, the Law's own legal footing aside".[12]

A request for a full-court en banc hearing was denied by a 9–7 vote by circuit judges.[13][14]

Original Supreme Court hearing

In September 2011, lawyers representing Fisher filed petition seeking review from the Supreme Court.[10][15] The plaintiff's legal team was assembled by the Project on Fair Representation, a Washington, D.C.-based legal defense fund active in attempts to overturn race-based laws, whose legal fees were paid by Donors Trust, a conservative donor-advised fund.[16] On February 21, 2012, the court granted certiorari in Fisher v. University of Texas at Austin. Justice Elena Kagan recused herself from the case and did not participate in the court's discussions.[17] Kagan's recusal was most likely due to her involvement with the case while she was Solicitor General.[7]

The case was on the Supreme Court calendar for the term beginning in October 2012.[18][19] There were concerns that if the Court overruled Grutter, affirmative action at public universities would end in the United States.[10] Some argued that the result of such a ruling would decrease the number of black and Hispanic students admitted to American universities while increasing the proportion of white and Asian students.[10]

Amicus Briefs

Amicus briefs were filed by Teach for America, the Asian American Legal Foundation, the Asian Pacific American Legal Center, the Asian American Legal Defense and Education Fund, the California Association of Scholars and Center for Constitutional Jurisprudence, the Black Student Alliance at The University of Texas, the Mountain States Legal Foundation, the Pacific Legal Foundation, Peter Kirsanow, Stuart Taylor, Jr., and many others.[20]

Louis D. Brandeis Center for Human Rights Under Law, et al

The Louis D. Brandeis Center for Human Rights Under Law (LDB) submitted an amicus brief in support of Fisher.[21] Eponymously named for the Associate Supreme Court Justice Brandeis, the LDB is a nonprofit organization dedicated to the advancement of "the civil and human rights of the Jewish people and to promote justice for all."[22] Justice Brandeis was born of Jewish descent and was known for his active role in the Zionist movement. The LDB is known for continuing Brandeis' legacy of Jewish advocacy by being active on American campuses, where it combats anti-Semitism and anti-Israelism, according to the organization's vision statement.[23]

The LDB amicus brief in Fisher compared the Defendants' rationale for their race-based admissions process as analogous to the reasons given historically to restrict or limit the enrollment of Jewish students in highly selective colleges and universities. These contemporary policies, the LDB argued, had the continuing effect of limiting the enrollment of and penalizing other groups of minority students, particularly Asian Americans. Notably, the LDB was joined in this amicus brief by both the 80-20 National Asian American Education Foundation and the National Federation of Indian American Associations, whose memberships favored race-neutral, merit-based college admission policies. The LDB brief expressed the shared interests of these organizations in the Fisher case. Their membership, it argued, were being directly harmed through college admissions processes that gave racial preferences to some racial groups at the expense of others, resulting in higher academic standards for Asian applicants, compared to other races.

The LDB argued that Ivy League schools' history of disenfranchising Jewish minorities indistinguishably paralleled the admission policies that they argued penalize disfavored applicants of Asian heritage — if bygone Jewish quotas would be unacceptable to the Court, the LDB argued, then the court should not accept contemporary admissions processes with similar effect of disfavoring races that might overwhelm schools due to high academic performance. As examples, the LDB cited a quote from former Dartmouth and Yale admissions officers expressing their desire to avoid strictly academically based admissions processes, as that would inevitably result in overwhelming matriculation rates of Jewish students. The brief goes on to cite a number of other examples of such sentiments expressed throughout the history of Ivy League admissions administrators commenting on the subject.

Beyond troublesome historical parallels, the LDB brief pointed to race in contemporary times frequently being a decisive factor in admissions, again disproportionately penalizing qualified Asian-American students. It cited Princeton professor Thomas Epenshade's book examining a study that showed Asian American students' SAT scores needing to exceed white colleagues' scores by 140 points, and white students' scores needing to exceed black and Hispanic scores by 310 and 130 points, respectively. Put another way, when race is factored into the admissions process for students with the same SAT score, black and Hispanic students are most likely to gain admission, while Asian American students are least likely.[24] Inversely, when race is not a factor in admissions, like in California, Asian American enrollment rises significantly. LDB also pointed to data showing that Asian students win or are finalists for roughly 30 percent of the most prestigious accolades given to high school seniors, a number that represents twice their Ivy League enrollment.

The LDB brief also criticized "comprehensive review" admissions policies that take factors such as low family income, first generation to attend college, and difficult personal and family situations, and participation in extracurricular activities, as highly subjective, impossible to audit, and the result of concessions to political pressure to admit more African Americans. These "holistic" admissions practices, the LDB argued, are designed to reduce the number of Asian Americans, often utilizing negative stereotypes surrounding Asian students' involvement in extracurricular activities — this, in order to fulfill subjective quotas of how a given class should be racially composed.

The LDB brief highlighted what it argued was the zero-sum nature of college admissions, where limited seats in incoming classes are available, and thus, points given to one applicant due to membership of a preferred race, necessarily means points taken from others on the basis of a membership of a disfavored race.

The LDB brief concluded that the Supreme Court should not defer the ultimate question of Fourteenth Amendment equal protection in school admissions to school administrators or government officials, as "the culture of higher education simply does not accept that there is anything wrong with racial discrimination, and indeed, views racial discrimination as a moral imperative and public good." The LBD argued the Supreme Court should end racial discrimination in college admissions as a matter of law.

Oral arguments

On October 10, 2012, the Supreme Court heard oral arguments in the case. Bert Rein represented the petitioner, Gregory G. Garre, a former Solicitor General, represented the respondent, the university,[25] and Solicitor General Donald Verrilli, Jr., presented the government's stance in support of the respondent.[26]

During the beginning of the petitioner's argument, Justices Sotomayor and Ginsburg asked questions about whether the case was moot. Specifically, they were concerned with the university's arguments that Fisher would not have earned admission regardless of her race, that she had already graduated from college, and that she only named the $100 application fee as real damages. Scalia commented that the harm of racial discrimination alone created an active controversy under the Court's previous Equal Protection jurisprudence.[27]

Justices Scalia, Alito, and Roberts asked many questions about the definition of a "critical mass", which Grutter named as the central measure of diversity. Scalia started calling it a "critical cloud" after the university's lawyer failed, upon multiple requests, to define the central measure of diversity.[27] Chief Justice Roberts asked whether an applicant who was one-quarter or one-eighth Latino would be permitted by the university to check the "Latino" box.[27] Garre responded that the applicant was entitled to self-identify as any race, subject to discipline under the university's honor code, and that the university did not ever question that determination.[27]

Legal analysts concurred that the process of oral argument indicated that a majority of the justices disliked the university's position.[28]

Opinions of the Court

The opinion was issued on June 24, 2013—unusually late given that it was argued in October 2012. In a 7–1 decision, the Court vacated and remanded the Fifth Circuit's ruling. Writing for the majority, Justice Kennedy concluded that the Fifth Circuit failed to apply strict scrutiny in its decision affirming the admissions policy. Instead, he wrote, the Fifth Circuit held that Fisher could only challenge "whether the University's decision to use race as an admissions factor 'was made in good faith.' It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption".[29] Kennedy argued that per the Grutter ruling, the burden of evidence primarily lies with the university "to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity".[30]

Justice Scalia wrote a one-paragraph concurring opinion, stating that he still held the view that he first expressed in his concurring opinion in Grutter: "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception".[31] Because the petitioner did not ask to overturn the holding in Grutter, that there is a compelling evidence in the educational benefits of diversity to justify racial preferences in university admissions, he joined with the majority in full.[32]

Justice Thomas wrote his own concurrence, stating his reasons for overturning Grutter, and ruled that the use of race in higher education admissions violated the Equal Protection Clause. Thomas concluded that Grutter was a radical departure from the Court's application of the strict scrutiny test. According to Justice Thomas, strict scrutiny had only been previously satisfied where the state actor was acting to protect national security or to remedy its own past discrimination.[33] He wrote that student body diversity was simply not important enough to override the presumption that race-based policies are unconstitutional.

Additionally, comparing such university admissions with desegregation, he wrote that "there is no principled distinction between the University's assertion that diversity yields educational benefits and the segregationists' assertion that segregation yielded those same benefits".[34] He also wrote that he believed that such admissions programs may actually be more harmful: "Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates...the University's discrimination does nothing to increase the number of blacks and Hispanics who have access to a college education generally...any blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete".[35]

In her dissenting opinion, Justice Ginsburg explained her reasons for affirming the Fifth Circuit's ruling. Noting that the university's 10% plan admitted students regardless of their race, she argued that "the University's admissions policy flexibly considers race only as a 'factor of a factor of a factor of a factor' ... and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University's educational objectives ... As I see it, the Court of Appeals has already completed that inquiry, and its judgment, trained on this Court's Bakke and Grutter pathmarkers, merits our approbation".[36]

Back to the Fifth Circuit

In June 2013, the Supreme Court ruled the Fifth Circuit had failed to apply strict scrutiny to the university's race-conscious admissions policy and sent the case back to the Fifth Circuit court. In November, the Fifth Circuit court heard oral arguments from both sides. In their questions during the arguments, Judges Patrick Higginbotham, Carolyn Dineen King, and Emilio M. Garza focused on the way the university defines "critical mass" as well as past attempts the university has made to increase minority enrollment.[37]

On July 15, 2014, the Fifth Circuit announced its decision in favor of UT Austin, with Judge Garza dissenting. In its decision, the majority wrote, "It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity."[38] Fisher sought a rehearing en banc with the Fifth Circuit which was denied on 12 of November in a 10–5 decision.[39] Fisher then filed a petition for certiorari to the Supreme Court.[40]

Return to the Supreme Court

Main article: Fisher v. University of Texas (2016)

On June 29, 2015, the Supreme Court announced that they would hear another challenge to UT Austin's admissions policy. The case was assigned docket number 14-981 and oral arguments were heard on December 9.[41] Legal analysts predict from the justices' questions that the Court would likely either remand the case again to the lower courts for additional fact-finding, strike down UT Austin's policy, or strike down affirmative action in college admissions nationwide.[42]

During oral arguments, Justice Scalia raised the mismatching theory and questioned whether black students admitted to top-tier schools suffer because the courses are too difficult. Scalia commented that "There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well. One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas. They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them."[43] The comments led to outcry from the University of Texas's African American students,[44] and spurred the creation of the Twitter hashtag #StayMadAbby.[45] As Justice Antonin Scalia died on February 13, 2016, and Justice Elena Kagan recused herself, the case was decided by the seven remaining justices. On June 23, 2016, a 4–3 vote affirmed the Fifth Circuit's decision for UT Austin.

See also


  1. ^ Fisher v. Univ. of Tex., No. 14-981, 579 U.S. ___ (2016).
  2. ^ Fisher v. Univ. of Tex., 570 U.S. 297 (2013).
  3. ^ Liptak, Adam (24 June 2013). "Justices Step Up Scrutiny of Race in College Entry". New York Times. Retrieved 25 June 2013.
  4. ^ Richey, Warren (February 21, 2012). "Affirmative action in college admissions goes back before Supreme Court". The Christian Science Monitor.
  5. ^ Wermiel, Stephen (October 11, 2011). "SCOTUS for law students: Barbara Grutter, meet Abigail Fisher". SCOTUSblog.
  6. ^ "State Adjusts UT Admissions Policy to 'Top 7 Percent'". Archived from the original on 1 October 2016. Retrieved 27 September 2016.
  7. ^ a b c Haurwitz, Ralph K. M. (February 21, 2012). "UT's race-conscious admission policy facing Supreme Court test". Austin American-Statesman. Archived from the original on April 29, 2012.
  8. ^ Jeffrey Toobin. "The Other Big Supreme Court Case". The New Yorker.
  9. ^ a b c d e "Joint Appendix, Abigail Noel Fisher v. University of Texas at Austin (Case 11-345)" (PDF). The Supreme Court of the United States. p. 65a–66a. Retrieved October 10, 2012.
  10. ^ a b c d e Liptak, Adam (October 15, 2011). "College Diversity Nears Its Last Stand". New York Times. Should the Supreme Court disavow it, the student body at the University of Texas and many other public colleges and universities would almost instantly become whiter and more Asian, and less black and Hispanic.
  11. ^ a b "Fisher v. University of Texas at Austin challenges affirmative action in higher education". The Daily Texan. February 21, 2012.
  12. ^ Fisher v. University of Texas, 631 F.3d 213 (5th Cir. 2011).
  13. ^ Farmer, Liz (February 21, 2012). "U.S. Supreme Court to hear case on UT admission policies". The Daily Texan.
  14. ^ Fisher v. University of Texas, 644 F.3d 301 (5th Cir. 2011).
  15. ^ Petition for Certiorari Fisher v. University of Texas at Austin. Retrieved June 25, 2013.
  16. ^ Smith, Morgan (February 23, 2012). "One Man Standing Against Race-Based Laws". New York Times. Retrieved February 21, 2015.
  17. ^ Barnes, Robert (February 21, 2012). "Supreme Court agrees to reconsider use of race in college admission decisions". The Washington Post.
  18. ^ Denniston, Lyle (February 21, 2012), Affirmative action review due next Term, SCOTUSblog, retrieved April 6, 2012
  19. ^ Harrop, Froma (February 28, 2012). "Racial Preferences in College Admissions: Time to Go". Real Clear Politics.
  20. ^ "Fisher v. University of Texas at Austin". SCOTUSblog. Retrieved March 28, 2012.
  21. ^ "Brief amici curiae of Louis D.Brandeis Center for Human Rights Under Law, et al. filed" (PDF).((cite web)): CS1 maint: url-status (link)
  22. ^ "Homepage". Brandeis Center. Retrieved 2021-02-15.
  23. ^ "Mission and Values". Brandeis Center. Retrieved 2021-02-15.
  24. ^ Espenshade, Thomas J.; Radford, Alexandria Walton (2009-11-01). No Longer Separate, Not Yet Equal. ISBN 978-0-691-14160-2.
  25. ^ Leon Lin (October 16, 2012). "Fisher v. UT affirmative action case oral arguments heard". The Tech. Vol. 132, no. 45.
  26. ^ Daniel Fisher (June 19, 2013). "Supreme Court's Final Decisions Also A Verdict On SG Verrilli". Forbes.
  27. ^ a b c d "Oral Argument Transcript", U.S. Supreme Court
  28. ^ Nick DeSantis, "Early Reactions to Fisher v Texas Arguments", Chronicle of Higher Education, October 10, 2012.
  29. ^ Fisher v. University of Texas, 570 U.S., (slip op., at 11).
  30. ^ Fisher v. University of Texas, 570 U.S., (slip op., at 13).
  31. ^ Casey Scott McKay, "Fishin' with Fisher: Determining the Depth of Deference Does Not Demand Damning Deference to A Dastardly Death", 83 Mississippi Law Journal 951 (2014).
  32. ^ Fisher v. University of Texas, 570 U.S., (Scalia, J., concurring slip op., at 1).
  33. ^ Fisher v. University of Texas, 570 U.S., (Thomas, J., concurring slip op., at 4–5).
  34. ^ Fisher v. University of Texas, 570 U.S., (Thomas, J., concurring slip op., at 12).
  35. ^ Fisher v. University of Texas, 570 U. S., (Thomas, J., concurring slip op., at 17–18).
  36. ^ Fisher v. University of Texas, 570 U.S., (Ginsburg, J., dissenting slip op., at 3–4).
  37. ^ Voeller, Amanda (November 14, 2013). "Fifth Circuit hears oral arguments for Fisher v. UT case". The Daily Texan.
  38. ^ 09-50822 5th Circuit Court of Appeals, (2014).
  39. ^ 09-50822 ON PETITION FOR REHEARING EN BANC 5th Circuit Court of Appeals, (2014).
  40. ^ "Fisher II" reaches the Court. February 11th.
  41. ^ Sherman, Mark (June 29, 2015). "Supreme Court Will Re-Hear Texas Affirmative Action". ABC News. AP.
  42. ^ Denniston, Lyle (December 9, 2015). "Argument analysis: Now, three options on college affirmative action". SCOTUS Blog.
  43. ^ Mencimer, Stephanie (December 9, 2015). "Justice Scalia Suggests Blacks Belong at "Slower" Colleges". Mother Jones.
  44. ^ Hennessy-Fiske, Molly (December 12, 2015). "For black students at Texas, Supreme Court remarks are a burden added". Los Angeles Times.
  45. ^ Bernstein, Roberta (December 13, 2015). "U. of Texas Supreme Court fight gets hashtag: #StayMadAbby". USA Today College.

Further reading