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In 1997, the Texas Legislature passed House Bill 588 which granted the top 10% of in-state graduating high school seniors automatic admission into University of Texas (UT). For students who did not finish in the top 10%, UT admissions officials used different factors such as extracurricular activities, SAT scores, and race to determine who would be allowed to attend the college. UT officials justified the use of race as an admissions criteria in order to create a more diverse student body.


In 2008, the University of Texas rejected the application of Abigail Fisher,  a graduating senior from Stephen F. Austin High School. Fisher had an SAT score of 1180, participated in orchestra and math competitions, volunteered with Habitat for Humanity and was academically in the top 12 % of her class. A non-profit group, “Students for Fair Admissions,” founded by Edward Blum, a UT graduate and political activist, filed a lawsuit against UT Austin on behalf of Fisher. Blum and Fisher argued that the school’s use of race as a factor for admission violated the Equal Protection Clause of the Fourteenth Amendment.


In 2009, however, U.S. District Court judge Sam Sparks upheld the university’s admissions policies, finding that they met the standards of the “Top Ten Percent Law.” Referencing a prior case, Grutter v. Bollinger (2003), judge Sparks ruled that UT’s admission policy did not violate the Equal Protection Clause just because it gave preference to a racial minority. The Fifth Circuit Court of Appeals affirmed this holding, but Fisher and her attorneys appealed to the U.S. Supreme Court. In 2013, the Supreme Court held in a 7-1 vote that the Fifth Circuit Court had failed to employ strict scrutiny in accessing the constitutionality of UT’s admission system. The decision, therefore, was voided and remanded to the Fifth Circuit for retrial.


The Fifth Circuit Court of Appeals reheard arguments in the case. Attorneys for the University of Texas argued that race was the only factor that could increase enrollment for minorities at UT, as they had tried different methods without success in the past. The Fifth Circuit Court of Appeals held that “It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity.” Fisher then appealed the matter to the U.S. Supreme Court. - Nneka Nnaji


Constitutional Issue Raised in the Case

Did the University of Texas’s admissions process violate the Equal Protection Clause of the Fourteenth Amendment?

Citation and Decision


Fisher v. Texas II, 579 U.S. (2016) | Full Decision

In a 4-3 decision, Justice Anthony Kennedy found that the admissions policies at the University of Texas did not violate the Equal Protection Clause of the Fourteenth Amendment. Kennedy explained that prior precedents relating to affirmative actions and university admission policies suggested that the diversity of an educational setting had always been viewed as a compelling state interest. Such measures were permissible so long as there was concrete evidence to indicate that the state had not established a quota system based on “an amorphous idea of diversity.” Justice Clarence Thomas dissented from the majority opinion, arguing that the Equal Protection Clause of the Fourteenth Amendment prohibits the use of race as a factor in university admissions procedures. Justice Samuel Alito also dissented, claiming that the majority’s decision was too deferential to the University of Texas’ determination that its use of race in the admissions process was tailored to serve a compelling state interest.


Discussion Questions


1. Did the University of Texas’ use of race as a factor for the admission process violate the Equal Protection Clause of the Fourteenth Amendment?


2. Did the strict scrutiny standard apply to this case? If so, why and how?


3. Did the court find that the University of Texas’ policy of using race as an admissions factor served a compelling state interest?


4. Was UT’s admission policy narrowly tailored to achieve the educational benefits it claimed would create a diverse atmosphere and increase minority enrollment?


5. Did the University of Texas clearly define its interest, and did it withstand the highest scrutiny of the court?


Oyez: Fisher v Texas (2016)

American Council on Education: A Timeline of the Fisher case

New York Times: Supreme Court Upholds Affirmative Action Program

Texas Tribune: Supreme Court Upholds UT's Affirmative Action Program

PBS: Equality in Higher Education


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