Fisher v. University of Texas at Austin

Brief Filed: 8/13/12
Court: US Supreme Court
Year of Decision: 2013

Read the full-text amicus brief (PDF, 257KB)


At issue is whether the U.S. Supreme Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin’s use of race in undergraduate admissions decisions

Index Topic

Affirmative Action


The case concerns Abigail Fisher, a white Texas resident who filed this lawsuit after she was denied admission to the Univ. of Texas at Austin (hereafter referred to as UT). She argued that UT’s consideration of race as a factor in its admissions policy discriminated against her because of her race: under the policy, she contended, minority students with less impressive credentials had been admitted instead of her.

The last time the Court issued a ruling on affirmative action, in 2003, the justices in a 5-4 decision upheld the Univ. of Michigan Law School’s limited use of race in its admissions policies to increase diversity (Grutter v. Bollinger). In that decision, the Court held that racial diversity in higher education qualified as a compelling governmental interest. (APA filed an amicus brief in that case consistent with APA policies contained in its Resolution on Affirmative Action and Equal Opportunity and other APA policies on ethnic minority retention. APA’s brief put forth research findings in support of the Univ. of Michigan’s position.)

Since 1998, most of the slots in the UT’s freshman class have been filled using a program that does not consider the applicant’s race: the Top Ten Percent Plan, which automatically admits any Texas resident who graduates from high school in the top ten percent of his/her class. For several years, university officials did not consider the applicant’s race to fill the remaining slots in the class; instead, they looked at factors such as academic performance, essays, leadership qualities, and work experience. After the Court’s 2003 decision in Grutter, the Regents of the University of Texas system modified the admissions policy, authorizing each school to decide whether to consider an applicant’s race. In 2004, UT modified its undergraduate admissions policy to include consideration of an applicant’s race.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit unanimously affirmed in 2011 that UT’s policy is within the teachings of Grutter. The Fifth Circuit agreed with UT, as did the trial judge in Austin, whose ruling observed that "as long as Grutter remains good law, UT’s current admissions program remains constitutional." But Grutter's longevity has been in doubt since its author, Justice Sandra Day O'Connor, was succeeded by Justice Alito, who joined the court's four other conservatives in a 2007 ruling that forbade public-school districts from promoting diversity through race-conscious pupil-assignment plans (Parents v. Seattle School District). APA filed an amicus brief in that case as well.

The Obama administration filed a brief on UT’s side at the Fifth Circuit. The "university's effort to promote diversity is a paramount government objective," that brief said. Justice Elena Kagan, who was U.S. Solicitor General in 2010 when the Justice Department filed that brief, recused herself from the Fisher case, so the Fisher decision will be made by an eight-Justice Court.

The Petitioner’s primary argument is that it is unconstitutional for UT to use race as a factor in its admissions program because the University’s pre-existing race-neutral approach (i.e., the Top Ten Percent Plan), is fully capable of meeting any educational interest in achieving a diverse student body.

Many view Fisher as a vehicle through which the Court could cut back on if not eliminate the use of race in admissions decisions at public colleges and universities. While Fisher’s attorneys argue that UT’s discrimination goes beyond what was allowed in Grutter (in which the Court allowed limited use of such preferences), they also argue that if the Texas plan satisfies the U.S. Supreme Court’s analysis in the Grutter decision, then the Court should reconsider that ruling.

APA's Position

APA’s brief, in support of University of Texas at Austin, was filed on Aug. 13, 2012. Many of the topics addressed by APA in Grutter, (e.g., studies/research demonstrating that diversity in higher education promotes harmonious and productive intergroup relations) are also addressed in Fisher. APA’s brief presents scientific evidence supporting the overarching principle that institutions of higher education should be permitted to employ race-conscious admissions practices to promote the many educational benefits for all students associated with campus diversity. The scientific conclusions set forth in the brief are grounded in 79 peer-reviewed studies on campus diversity. Nearly all of these studies have been conducted or published since the Court’s decision in Grutter in 2003.

APA argues that the compelling government interest in promoting diversity in higher education has not changed since Grutter. The brief further states that a) underrepresentation of minority groups inhibits academic performance, fosters prejudice and hinders cognitive function; and, b) subconscious racial bias continues to interfere with the effective education of nonminority students. APA’s brief explains how the curative benefits of diversity in higher education require a critical mass of students from different backgrounds. Further, the brief addresses how admissions policies that increase campus diversity continue to advance the government’s interests because a) increased racial diversity improves intellectual and academic performance for minority and nonminority students, and b) diversity in higher education improves civic engagement and professional competency.


The Supreme Court held that, in affirming the lower court’s decision, the Court of Appeals did not hold the university’s admission policies to a standard of strict scrutiny, so the judgment was incorrect. Based on previous judicial precedent in cases dealing with minority admissions, the Court has held that such cases are reviewable under the Fourteenth Amendment and that they must be reviewed under a standard of strict scrutiny to determine whether the policies are “precisely tailored to serve a compelling governmental interest.” If the policy does not meet this standard, race may not be considered in the admissions process. The Court held that it was the duty of the reviewing court to “verify” that the university policy in question was necessary to achieve the benefits of diversity and that no race-neutral alternative would provide the same benefits. The Supreme Court held that the lower courts did not conduct a sufficient strict scrutiny examination in this case.