Supreme Court Case: Fisher v. University of Texas & Affirmative Action

The Supreme Court has permitted a university to give preferences to racial minority students in order to allow them to lead mainstream American way of life. This plan, which aims to achieve racial diversity, has numerous benefits for students, including exposure to different cultures and ideas. While some argue that the university should have set forth clearly the level of minority enrolment that would constitute a critical mass, others believe that strict adherence to race-conscious admission policies can lead to negative educational environments and social stigma against racial minority groups. Nevertheless, I concur with the opinion as it reflects elements of progressive legislation, which encompasses racial diversification in our society.

In this assignment we analyze the opinion of the Supreme Court of the United States filed in
the matter of consideration of race of applicants for admission to public university. The
petitioner, (Abigail Noel Fisher v University of Texas, 2016), a Caucasian was not granted
admission for an undergraduate admission by the University of Texas. The Petitioner has has
challenged the decision of the University under the provisions of the Equal Protection Clause
of the Fourteenth Amendment, 42 U.S.C. § 1981, 42 U.S.C. § 1983 and Title VI of the Civil
Rights Act of 1964. The Petitioner having not got admission under the top 10% of her high
school class, applied for admission for the 25% of the other seats. She filed a suit against the
Respondent University claiming that she was denied admission on basis of her race, as a part
of its holistic review process of the applicants.
The Petitioner therefore claims that it amounts to violation of Equal Protection Clause under
the Fourteenth Amendment. She further contended that the admission policy of a public
university cannot be reviewed under strict scrutiny rules as laid down by the courts in Grutter
v Bollinger, (539 U.S., 2006) and Gratz v Bollinger (244, 2003).The university, on the other
hand, contended that, its admission process is loosely based on the ruling of the court in
Grutter, and therefore, was of the opinion that the holistic process of admission aims at
securing greater diversity of the student body in the university.
Reason why I chose this case
One of the main reasons for choosing this case is that it is one of the recent most, albeit,
landmark judgements given by the Supreme Court concerning the university guidelines and
admission policies with regard to racial demographics in the schools and university. The
importance of racial diversity, the long term benefits of holistic admission scheme has clearly
been highlighted in this case. Similarly, as a student, it is important to understand that the
admission decisions are not based only on individual performance and aptitude, but a holistic
admission scheme where race is also considered as one of the key factors in granting
admission.
The decision by the Supreme Court has been a landmark one, no doubt. But has been a
thought provoking one, since the court reiterated that diversity is an important element of
university admissions and also our society at large. Although the theory surrounding equal
opportunities for all can only be prophesised, an education system which does not support
racial majority can help in bridging up the gap of disparities caused due to race and ethnicity
of an individual. This case is among the few to have drawn huge public attention and
response before the Court, and therefore involve a number of issues and opinions.
Issues, applicability, history and practical implications for practitioners or policymakers
The issue here is whether the public university violates the equal protection clause of the
fourteenth Amendment, when it considers the race in the admission procedure for
undergraduate course?
Secondly, whether the university admission procedure upholds the standard of good faith?
Whether the petitioner has shown that she was denied equal treatment at the time when her
application was rejected?

The opinion given in this case has a direct bearing to the public issue and contemporary
issues. The racial classifications made by the university, though on the face of it appears to be
discriminatory and arbitrary, when adopted in good faith can prove to be beneficial in the
changing circumstances. While racial discrimination is widely conceived to be a black/white
divide, the case of Fisher is evident to prove the various preferences given to individuals with
Spanish speaking heritage and other races as well. The opinion the court in stating that the
“low numbers” of unrepresented minority students yielded by the holistic review was the
process’s strength and not weakness” (supra, 2016) has a number of practical implications,
thereby reasserting the need to have a structure that encompasses representation from all the
racial minorities. The case also reasserts that under the Equal Protection Clause, the
universities must adhere to the strict scrutiny which must be narrowly tailored to meet the
government objectives. Secondly, the case also highlights the educational benefits of racial
diversity are of a compelling interest to the university in shaping up the society.
The law pertaining to discrimination on the basis of race, colour and national origin is laid
down in the Title VI of the Civil Rights Act of 1964. (Cornell University, 2015), which
explicitly states that, no person shall “on the ground of race, colour, or national origin, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance”
The history pertaining to the case involves the passing of the Texas Legislation in the year
1997 requiring the University of Texas to admit the undergraduate students who ranked in the
top ten percent of their high school classes. This decision by the Texas Legislature came up
in the wake of the judgement given in the case of Hopwood v Texas (1996), where the
practice of the explicit race based admission decision of the University was held illegal by the
Appeal Court. Thereafter, the University adopted its Academic Index (AI) and Personal
Achievement Index (PAI) based on the criteria such as work experience, extracurricular
activities and “special circumstances” which may include socioeconomic status, family status
and race among various other factors. The same was implemented with effect from the year
1997. The landmark decision in the case of Grutter v Bollinger held that the student body
diversity is a “compelling state interest that can justify the use of race in university
admissions”. The rationale laid down in this case stated that the race conscious admissions
policies at public universities must be “narrowly tailored” so as to pass the strict scrutiny.
(Smolla, 2011).
The case of Fisher has opened a wave of practical implications for policy makers and
practitioners and universities in particular. The “Top Ten Percent Plan” has resulted in a
rising number of minority students being admitted to undergraduate schools. The case has
reiterated the fact that the general admission process is to be replaced by the PAI and AI
index which among other features takes into account the racial ethnicity and accommodates
racial diversity in undergraduate university admissions. For institutional policy makers, the
educational benefits of diversity in institutions should connect with the accompanying
educational goals. The policy should therefore reflect better educational standards as
highlighted in the Grutter case. These include better educational and training facilities for
students, preparation of students for workforce in a global economy, civic readiness etc. The
institutions, while devising such policies to encompass students belonging to diverse race,
should therefore be able to connect with the broad benefits to their specific missions and
educational goals (nap.edu, 2016)

Discussion on the expert commentary pertaining to the case subsequent to the opinion given
by the Supreme Court
The decision of the appellate court has been a welcomed equivocally by student, student
bodies and leaders in general. There were a record number of amicus filings in the case in
defence of the University. (Uma M. Jayakumar, 2016)In the words of Lyle Denniston,
(Denniston, 2012), the decision of the court in this case has led the court to adopt its own
version of an admissions program for undergraduates, with race as a contributing though not
controlling factor”. The affirmative action by the Supreme Court in this case of Fisher, has
seen solidarity from various factions of people including advocates, policy makers in general.
President Obama, praising the affirmative action of the court stated “The Supreme Court
upheld the basic notion that diversity is an important value in our society and that this country
should provide a high-quality education to all our young people, regardless of their
background,” He further added, “We are not a country that guarantees equal outcomes, but
we do strive to provide an equal shot to everybody.” (Barnes, 2016) Although few factions of
people felt that the decision was narrowly written, it has paved a way for a race neutral plan
wherein it was felt that the universities across the country will “ look at this ruling as a
roadmap for how to constitutionally take race into account in admissions programs going
forward” (Vogue, 2016)
Public policy issues raised by the opinion in the case
The question of violation of the Equal Protection Clause (Sovereignty Education and Defense
Ministry (SEDM, 2015) is central to this case. Amendment 14, §1 states “no state shall deny
to any person within its jurisdiction the equal protection of laws”. The question was raised
whether the student body diversity is a compelling state interest, so as to survive the strict
scrutiny review. The university had to establish that the consideration of race is necessary to
further a compelling government interest. Secondly, the constitutional validity of the Texas
University policy of using a rigorous strict scrutiny approach in the admission of students
belonging to racial minority was under consideration. For the remaining students, the
University adopted a Personal Achievement Index, where among other criteria; race of the
student will be a key consideration. This criterion is central to the case of Fisher.
State and defend your agreement or disagreement with the outcome of the opinion and defend
your conclusion.
The opinion of the court in this matter underlines the need to have a racial diverse society,
which emphasizes the need to have mutual tolerance and racial diversification. This opinion
represents the diversity rationale and explains why a university should be permitted to give
preferences to racial minority students in order to allow them to lead a mainstream American
way of life. The plan imbibing racial diversity has a number of benefits for students in
preparing them for future in society, life and work culture. Exposure to different cultures and
ideas is possible by having diverse student body. Although the ruling in the present case
concerns universities, it can also have positive implications for using “race” as a factor for
job recruitment in government and publicly held posts.
However, there are certain areas which I do not agree and feel that the Petitioner should have
been granted admission in the University. I am in agreement with the Petitioner in saying that
the University should have set forth clearly the level of minority enrolment that would
constitute a critical mass. (Supremecourt.gov, 2015). The university had already achieved the

goal of critical mass by 2003, by virtue of using the top ten percent plan Secondly, strict
adherence to race conscious admission policies can lead to negative educational
environments and can lead to social stigma against the racial minority groups. The extent to
which such university policies are able to address such issues is a matter of deliberation. The
Centre for Individual Rights is of the opinion that while the race conscious admission policies
in universities can create a negative environment for students, it has also noted that the
students who benefit from these race conscious policies often underperform at universities,
thereby further perpetuating the negative stereotypes. (Bingham Greenebaum Doll, LLP,
2015)
However, in totality, I am in concurrence with the opinion as it reflects the elements of
progressive legislation, which encompasses the racial diversification in our society. The
affirmative action granted in the court upholds the test of constitutionality that can be applied
across diverse fields including state held jobs, admission for higher education and holding
public posts.
Discussion on the key issues raised by the opinion
The key issue that has to be addressed here is whether the university has caused violation of
the Equal Protection Clause under Fourteenth Amendment and Title VI of the Civil Rights
Act of 1964. The strict scrutiny test adopted by the Supreme Court in the case of Grutter,
served as a benchmark in determining the answer to the issue raised by the Court. The UT by
adopting the PAI and AI, has been able to successfully prove that it explicitly relies on the
racial segregation to enable greater diversity in the student body. Besides, the University
policy is in tandem with the state policy. The UT has also stated that the top 10% is
insufficient to secure diversity from all factions of the society. However, by doing so, the UT
has been successful in achieving increased diversity and securing a richer educational
environment for its students. This shows that the UT has been making consistent efforts to
secure race conscious admission program that is therefore important in securing racial
equality. As an affirmative rule, there has been no violation of the Equal Protection Clause in
the present case.
Secondly, the student body diversity is the compelling interest of the case. The University by
proving that the admission procedures reflected the minority representation from all factions
of ethnic and racial minority had complied with the interest for maintaining race conscious
admission policy. In this respect, it is noteworthy to add that the University had not followed
a quota based system; but, a holistic admission scheme based on individual aptitude, interests
and race among other aspects. Further, UT was has been successful in proving that increased
diversity within racial groups, creates a richer educational environment, for which reason,
there is a need to secure greater representation from unrepresented subgroups.
The question also arises whether the Petitioner, drawing all reasonable inferences in her
favour, has been able to show that the Petitioner was able to prove racial discrimination at the
time when her admission was rejected. Although the University claims that race is a factor,
but it is only one of the holistic factors that appear on the cover of every application. The race
of the applicant is identified and is known throughout the process of admission. But the use
of racial classifications is a benign form of classification as the admission officers are not
given any guidelines by the University as to how much weight is to be given for the race of
the student applying for university admission. (Tr. of Oral Arg. 54 , 2012) Hence, going by

these underlying factors, the Petitioner was unable to prove that there has indeed been
discrimination at the time of granting admission.
In addressing the question whether the University admission policy upholds the policy of
good faith, it is vital to examine the very concept of good faith adopted by the University in
the process of admission. The compelling reason for the university to create a diverse
educational experience for its students was adopted by the UT following the Grutter
judgement. As summed up earlier, while race is an important factor, it is not the only factor
for the intake of students in the top 10%. The University has been modifying the admission
policies for over 20 years and concluded that the use of race-neutral policies and programs
was difficult to achieve, and hence a formula which encompasses racial minority
representation, is must in upholding the standards of good faith in the admission process.
References
94-50569 ( United States Court of Appeals Fifth Circuit March 18, 1996).
244, 539 (Supreme Court of United States June 23, 2003).
539 U.S., 306 (Supreme Court of United States June 23, 2006).
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Bingham Greenebaum Doll, LLP. (2015). U.S. Supreme Court year in Review. Ohio: Kanet Pol &
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Tr. of Oral Arg. 54 . (2012, October 10). Justia . Austin, Texas.
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