Equal Protection: Fisher v. University of Texas at Austin

Preview Issue 3, Vol. 43

By Alan Raphael

Published December 2015

For the second time, does the University of Texas at Austin improperly use race as a factor in undergraduate admissions?


CASE AT A GLANCE

Plaintiff Abigail Fisher, a white woman, was denied admission to the University of Texas at Austin undergraduate program and sued the school, arguing that it violated the Equal Protection Clause of the Fourteenth Amendment by considering race as a factor in the admissions decision. After the Supreme Court reversed an appellate court decision for the University, the appellate court again ruled against Fisher. The Supreme Court will consider whether the University satisfied the burdens required by the earlier Supreme Court ruling.


ISSUE

Did the University of Texas violate the Equal Protection Clause when it considered the race of the applicants as a factor in its admissions decisions affecting 20 percent of the entering class?


The school asserts that Fisher suffered no injury that a further ruling could redress, because she would not have been admitted to UT regardless of her race and because she has finished her undergraduate education and thus no longer seeks admission to the University. Image source: Wikimedia Commons.


FACTS

Abigail Fisher, a white Texas resident, applied for undergraduate admission to the University of Texas (UT) at Austin for the class entering in the fall of 2008. She did not qualify for automatic admission as a Texas high school graduate in the top ten percent of her class (Top Ten Percent admissions, or TTP), which accounted for admission of 81 percent of the entering class. Instead, UT evaluated her under the holistic review program, which considers numerous factors based on student achievements and experiences. As one of the 17,131 applicants considered for the 1,216 class positions available under the program, Fisher was denied admission.

The holistic review process considers high school class ranks, test scores, and difficulty of classes taken (together referred to as Academic Index (AI)), as well as two required essays and a review of the entire application (together referred to as Personal Achievement Index (PAI)). The PAI score is a slightly higher factor than the AI in the holistic review process. Among the matters considered in determining the PAI are demonstrated leadership qualities, extracurricular activities, honors and awards, work experience, socioeconomic status, community service, family responsibilities, the poverty rate of the applicant’s high school, and race or ethnicity. None of these factors is assigned a specific numerical value as the PAI is determined by a consideration of all of these factors.

Fisher applied to be admitted to the Liberal Arts Program (LAP), one of the school’s most competitive and demanding programs. Nearly all the seats in that program were filled by TTP students. The only students admitted to the LAP through the holistic review program were those whose AI exceeded 3.5 and whose combined AI and PAI scores were highest. Because Fisher’s AI score was 3.1, she was not considered for the LAP. Even if she had received a perfect PAI score of 6.0, she would not have been admitted to the LAP. That result would have been the same had Fisher been a member of a minority group. Had her race been nonwhite, her PAI score might have been higher, but it would not have affected her AI and thus she would not have been admitted to the LAP regardless of her race. Fisher was admitted to another university and graduated in May 2012.


"The Supreme Court ordered the appellate court to subject UT’s race-conscious admissions program to a more exacting scrutiny."


Fisher sued UT in federal court, alleging that the University’s consideration of race as a factor in making admissions decisions violated her Fourteenth Amendment right to equal protection of the law. The district court granted summary judgment to UT and the United States Court of Appeals for the Fifth Circuit affirmed. Fisher v. University of Texas, 631 F.3d 213 (5th Cir. 2011). The United States Supreme Court vacated that decision and remanded the case, holding that the appellate court had reviewed UT’s actions with undue deference. The Supreme Court ordered the appellate court to subject UT’s race-conscious admissions program to a more exacting scrutiny. Fisher v. University of Texas, 133 S. Ct. 2411 (2013) (Fisher I). After additional briefing and oral argument, the Fifth Circuit in a 2-1 opinion again affirmed the district court’s grant of summary judgment to UT. Fisher v. University of Texas, 758 F.3d 633 (5th Cir. 2014). The Fifth Circuit declined to hear the case en banc. The Supreme Court granted a writ of certiorari to consider the appropriateness of the panel’s decision.

Generally, courts dismiss a lawsuit when the plaintiff lacks standing to raise the claim or when facts have changed since initiation of the lawsuit so that the claim has become moot. Fisher has already graduated from college and thus any ruling in her favor would not lead her to be admitted to UT; further, UT asserts that Fisher’s AI score was too low for her to have been considered for admission to the LAP under the holistic review process. UT argued that the case should have been dismissed after the remand to the Fifth Circuit. That court rejected UT’s motion to dismiss, reasoning that the Supreme Court had directed it to decide the merits of the UT actions and thus foreclosed any dismissal on standing or mootness grounds. The issues of standing and mootness are not part of the question the Court agreed to review, although it would be free to dismiss the lawsuit on either of these grounds.


CASE ANALYSIS

When a law or government program that treats people differently on account of race is challenged, the Fourteenth Amendment Equal Protection Clause requires a court to utilize the most skeptical and searching standard of review, strict scrutiny. That test has two requirements, that the government is seeking to achieve a compelling interest and that the use of race is narrowly tailored or necessary to accomplish that interest. Use of race in governmental actions has, however, been held to meet the compelling government interest prong of this test in two situations. The first is to remedy instances of proven governmental race discrimination. The second finds a compelling interest in using race in admissions decisions in higher education to achieve the educational benefits arising from a diverse student body. Only this second category is involved in the Fisher case.

In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Supreme Court struck down as unconstitutional a state medical school admissions program that reserved 16 percent of the entering class positions for members of minority groups underrepresented in the class of medical students. In concurrence, Justice Powell wrote that the educational benefits of a diverse student body allowed a state school in making admissions decisions to consider race as part of a flexible, individualized, holistic determination of whom to admit. According to Justice Powell, a diverse student body leads to improved classroom discussion and the lessening of stereotypes and racial isolation. However, the diversity, which was a justifiable goal, is not simply ethnic or racial but rather “a broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”

The Bakke majority, including Justice Lewis Powell, rejected the state’s other rationales for the program as addressing societal discrimination, creating role models for minority students in professional occupations, and increasing the supply of doctors tending to the medical needs of underserved minorities. The specific medical school admissions program was, nevertheless, found unconstitutional because it created a quota, reserved some seats in the school only for minority group members, and considered only race rather than a variety of factors.


"The United States Supreme Court refused to consider any case challenging affirmative action in higher education for the 25 years after Bakke, although numerous petitions were presented to the Court involving challenges to the practice."


In 1996, in a case challenging affirmative action in the law school admissions program at UT, the Fifth Circuit ruled that the University of Texas violated the Equal Protection Clause in considering race in admissions decisions and that doing so did not further any compelling government interest. Hopwood v. Texas, 78 F.3d 932 (1996). The Supreme Court denied certiorari to the UT regarding this decision. UT responded by dropping consideration of race in admissions decisions throughout the University. Immediately, the numbers of African American and Hispanic students at the leading Texas state universities dropped substantially. The Texas legislature responded to the Hopwood decision and the subsequent decline in minority admissions statistics by enacting the Top Ten Percent (TTP) Law, granting automatic admission to any public state college including UT to any student graduating in the top ten percent of a Texas high school graduating class. The Texas state law did not consider race directly, although it accomplished the goal of significantly increasing the minority enrollment in Texas state higher education; most Texas high schools are highly segregated by race, not as a result of laws requiring racial separation but instead because of residential housing patterns.

The United States Supreme Court refused to consider any case challenging affirmative action in higher education for the 25 years after Bakke, although numerous petitions were presented to the Court involving challenges to the practice.It next addressed the issue in Grutter v. Bollinger, 539 U.S. 306, and Gratz v. Bollinger, 539 U.S. 244, both in 2003. In Grutter, the Court adopted Justice Powell’s views in Bakke as the governing standard in this area of law. The Court held that the University of Michigan Law School had a compelling interest in “obtaining the educational benefits that flow from a diverse student body.” It further held that the law school could use race as one among many factors in admissions to admit a diverse student body and that it could seek to achieve a “critical mass” of minority students in order to accomplish that goal. In Gratz, the Court applied this standard to disallow the University of Michigan undergraduate admissions program from allocating twenty points to students in underrepresented minority groups. What distinguished the two cases was that race was merely one among many factors used to achieve diversity in the law school, but it was given such great weight in the undergraduate program as to be dispositive in deciding which students to admit. These decisions expressed the view that the consideration of race in admissions decisions should not be permanent, and that it might no longer be constitutional to use it as a factor in admissions in another twenty-five years. The time limit constituted part of the narrow tailoring required by the second prong of strict scrutiny.

The Court next considered the constitutionality of a race-conscious higher education admissions process in 2013 when it ruled on Abigail Fisher’s challenge to UT’s denial of her application for admission. The trial court had granted summary judgment to UT and the Fifth Circuit affirmed. Fisher asserted that the Fifth Circuit had improperly applied strict scrutiny, giving inappropriate deference to the arguments made by the University. The Supreme Court agreed and remanded the case to the Fifth Circuit for a further decision applying the correct standard of review. That decision reaffirmed that achieving the educational benefits of diversity is a compelling government interest, a determination not challenged by Fisher, and that Grutter called for deference by courts to a university’s determination that diversity in the student body is a valid educational objective.

The Fisher I Court held, however, that no deference was due to the University’s determination that consideration of race in admissions was necessary to achieve a diverse student body. It criticized the Court of Appeals for requiring only that the University acted in good faith and believed its use of race was appropriate. Instead, Fisher I stressed that the University had a high burden of showing that the use of race met the requirement of narrow tailoring and that nonracial alternatives could not be employed to accomplish the desired student body diversity. As the Supreme Court indicated, “[n] arrow tailoring … involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classification.… The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity…” Seven justices agreed to the reversal of the Fifth Circuit ruling, although Justices Antonin Scalia and Clarence Thomas separately concurred to indicate that they would overrule Grutter and hold that achieving educational benefits of diversity is not a compelling government interest and thus does not justify using race in admissions decisions. Justice Kagan did not participate in the decision. Justice Ginsburg dissented and would have affirmed the appellate court’s judgment.


"According to the Fifth Circuit, the use of a holistic review process is necessary to achieve a truly diverse class and thus to achieve the educational benefits of diversity."


The holistic review process at UT considers a wide variety of factors in offering admission to students, whereas TTP, which results in the overwhelming majority of admissions, considers only one factor, class rank. According to the Fifth Circuit, the use of a holistic review process is necessary to achieve a truly diverse class and thus to achieve the educational benefits of diversity. Although race is one of the factors, it is merely one among many as required by Grutter. The overwhelming bulk of holistic review admissions were white non-Hispanic students. Far more minority students were admitted to UT through TTP than through holistic review. Nevertheless, the operation of the holistic review program by UT did increase the percentage of African American students at the school by 1 percent and that of Hispanic students by 2.5 percent. The test scores and grade point averages of white, Hispanic, and African American students admitted by the holistic review process were substantially higher than for those admitted under TTP. Because race and ethnicity were not the only factors considered, unlike the situation in Bakke, and were not determinative of the admissions decision, as in Gratz, the appellate court concluded that UT’s consideration of race and ethnicity as part of the holistic review process was constitutional; it concluded that the educational benefits of wide ranging student diversity were fostered by its use and that such diversity could not be accomplished by means not considering race.

According to the appeals court, students who would not otherwise be admitted under the TTP were admitted under the holistic review process, including “those with special talents beyond class rank … and minorities with the experience of attending an integrated school with better educational resources.” It reasoned that holistic review admitted minority students who would qualify for the most competitive UT academic departments and would add diversity to the classes in those subjects.

The Fifth Circuit quoted Grutter’s observation that “growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own unique experience of being a racial minority in a society, like our own, in which race still matters.” According to the appellate court, “race is relevant to minority and non-minority [students], notably when candidates have flourished as a minority in their school—whether they are white or black.” It concluded that the holistic process increased diversity of experiences and views among UT students, as permitted by Grutter, with race as only one among many admissions factors.

Both the majority and dissenting opinions in the appellate court agree on the relevant precedent and legal tests. They further agree that achievement of a critical mass of minority students, allowed under Grutter, is not capable of being translated into exact numbers or percentages and that creating such exact numbers would constitute creation of a quota disallowed by Bakke.

The dissent contends that the majority improperly continued to defer to the arguments made by UT. The proper strict scrutiny analysis, it argued, indicates that the UT failed adequately to justify its use of race in the admissions process; had not explained the concept of critical mass, which it asserted it is trying to attain; and had not proved that use of the holistic review process including race as a factor is necessary to attain that goal.

According to the dissent, UT “fails to explain how this small group contributes to its ‘critical mass’ objective” and therefore the school failed to meet its burden of showing “a clear and definite connection between its chosen means and its desired ends ….” Further, the dissent asserts that UT has never analyzed whether many of the minority students admitted under the TTP were students who had been in majority white schools and thus already added the experiences and achievement said to be accomplished by using race in the holistic review process. Absent such proof, the dissent contends that the majority did not demonstrate that use of race in admissions is a “necessary complement” to the TTP admissions.


" ... the dissent claims that the two cases are distinguishable. Grutter’s admissions mechanism was applicable to the entire entering class, while at UT the holistic review process affected fewer than 20 percent of the admitted students."


The Fifth Circuit majority argues that UT’s holistic review is narrowly tailored in part because UT continually monitors the holistic process and will “cease its consideration of race when it determines … that the educational benefits of diversity can be achieved … through a race-neutral process … .” In the dissent’s view, accepting this assurance is giving inappropriate deference to the University, rather than the searching scrutiny required by Fisher I. Contrary to the majority’s reasoning that the holistic process is constitutional because it is modeled with little change on the University of Michigan Law School plan upheld in Grutter, the dissent claims that the two cases are distinguishable. Grutter’s admissions mechanism was applicable to the entire entering class, while at UT the holistic review process affected fewer than 20 percent of the admitted students. This factual distinction, according to the dissent, “inevitably impacts the narrow tailoring calculus,” and UT has not met its burden of proof that its use of racial classifications is necessary and narrowly tailored for achieving its diversity objective.

Fisher argues that UT has failed to meet the requirement of Fisher I that the use of race in making admissions decisions is “narrowly tailored to further compelling governmental interests.” In her view, UT has failed to show that it lacked a diverse class under TTP and that UT had to show with specificity how using race in the holistic review process brought about educational benefits from increased student diversity. Fisher claims that UT did not demonstrate that the use of race in the holistic review process is necessary; its failure to do so should preclude approval of the university’s program. She argues that UT has several times in the course of this litigation changed its rationale for using race, and that its current justifications provide no evidence that it is necessary to use race as a factor to accomplish its shifting purposes for achieving diversity. Fisher further argues that UT has not shown that the means used actually accomplish any additional diversity beyond what is provided by the TTP or would be provided by TTP if it were extended to govern 100 percent of admissions decisions.

Fisher contends that, in fact, the appeals court failed to follow the Supreme Court order in Fisher I that no deference was to be given to the arguments of UT on the issue of narrow tailoring and that UT’s use of race had to face “the most rigid scrutiny.” She claims that UT has provided no data that minority students admitted under the holistic review process add to the diversity of the minority student population, no criteria to measure whether or when a critical mass of minority students has been achieved, or any basis to judge whether extending TTP to all admissions decisions or other means not employing race as a factor would be equally successful in achieving meaningful diversity and its educational benefits.

UT begins by asking the Court to dismiss the appeal on the grounds of standing and mootness. The school asserts that Fisher suffered no injury that a further ruling could redress, because she would not have been admitted to UT regardless of her race and because she has finished her undergraduate education and thus no longer seeks admission to the University.

UT goes on to describe the long history of racial discrimination in Texas state schools and the failure of nonracial methods to increase minority enrollment at UT. It claims that Fisher is improperly trying to re-litigate the question of whether use of race to achieve educational benefits of diversity is a compelling state interest, an issue previously decided in the affirmative by Grutter and reaffirmed in Fisher I.

On the merits, UT asks the Supreme Court to affirm the Fifth Circuit decision finding that Fisher had not been denied equal protection of the laws. It asserts that, as in Grutter, its holistic review process considers a large number of factors to choose students with varying talents and experiences and backgrounds and thus obtains the educational benefits of a diverse student body that is not obtained by reliance on TTP, which considers only a single consideration of class rank in Texas high schools. According to UT, admissions under TTP “will select no students, white or minority, who had remarkable achievements or are exceptional or unusual in some way, but fall just below the top decile of their high school class.” Students of any race who attended schools in which they were in the numerical ethnic or racial minority often have distinct experiences and perspectives that add to the diversity of the student body. Those factors could be considered by the holistic review process but not by TTP if those students do not score in the top ten percent of their graduating high school classes. Similarly, UT claims that students whose family members had never attended college or who had not been brought up speaking English, or who grew up in integrated neighborhoods, would add diversity to the student body and add to divergent points of view in discussions in class or outside of it, combat racial stereotyping, and lessen isolation by race and ethnicity on campus. According to UT, such students would often not be admitted under TTP but are brought to the campus through use of holistic review and accomplish the educational benefits recognized by Bakke, Grutter, and Fisher I as a compelling government interest.


SIGNIFICANCE

Affirmative action was first advocated at the national level under Presidents Lyndon Johnson and Richard Nixon. It has been applied to governmental contracting, hiring and promotions, and university admissions on both the national and state level. Initially applied solely as to African Americans, it has been extended to encompass other minority groups, disabled persons, and women. Many of its proponents view it as a major factor in the growth of the black middle class and still needed to raise the economic position of minorities who have been disproportionately shut out of better paying and professional positions within our society. The opponents of affirmative action contend that it violates equal protection by treating whites and males disadvantageously, puts minority members whom it advances under a cloud of being unqualified for positions they attain, and treats people as members of groups rather than allowing them to be evaluated based upon their individual characteristics, talents, and experiences.

The issue has engaged the attention of national political candidates and organizations as well as scholars. It has been the subject of debates in numerous state legislatures and statewide referenda, and has led to numerous court decisions that have placed significant restrictions on the programs. About a dozen states have barred the consideration of race in hiring, contracting, and educational admissions.


"... two justices in Fisher I have expressed the view that consideration of race in college admissions violates equal protection absent a prior finding of intentional racial discrimination, and the Court could decide to reconsider its prior rulings on this issue."


Numerous organizations and individuals have filed amicus curiae briefs in this case. The Supreme Court is likely to issue its decision sometime in the spring, and it may become an issue in the 2016 presidential campaign. A majority of state universities make some use of race in making admissions decisions. This case does not require the Court to reconsider whether the use of race in university admissions can qualify as a compelling state interest, a matter not at issue in this lawsuit. However, two justices in Fisher I have expressed the view that consideration of race in college admissions violates equal protection absent a prior finding of intentional racial discrimination, and the Court could decide to reconsider its prior rulings on this issue.

Assuming that the Court does not address that issue, its decision on whether UT has in fact met the burden Fisher I established to meet the requirement of narrow tailoring, its decision may provide important guidance to universities that choose to utilize race as a factor in admissions decisions. Because few states admit most students through an automatic TTP program such as that used by UT, it is possible that the decision may not provide clear guidance to universities that admit most or all students through a system that includes race as a factor in making the admissions decisions. A ruling that UT has failed to meet its burden would not necessarily foreclose it from implementing a system involving racial preference in the future but would merely indicate that it had failed adequately to justify its doing so in this case. However, the Court could create a burden for the University that would be so difficult to meet that few if any universities could meet the burden, although the Court will still have said that such a program could possibly be constitutional.



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MORE ABOUT THIS CASE:


Fisher v. University of Texas at Austin

(Docket No. 14-981)


Argument Date: December 9, 2015


Attorneys for the Parties:

For Petitioner Abigail Noel Fisher:

Bert W. Rein


For Respondent University of Texas at Austin, et al.:

Gregory G. Garre


Amicus Briefs:

See all amicus briefs for this case


 ABOUT THE AUTHOR


Alan Raphael is a member of the faculty of Loyola University Chicago School of Law and teaches criminal procedure and constitutional law.  Read his profile here.


IN THIS ISSUE:


Preview Issue 3, Vol. 43 covers the following cases:



Criminal Law
Musacchio v. United States

Employment Law
Green v. Brennan

Equal Protection
Fisher v. University of Texas

ERISA
Gobeille v. Liberty Mutual Insurance Company

Federal Indian Law
Dollar General Corporation v. Mississippi Band of Choctaw Indians

Federal Jurisdiction

Merrill Lynch v. Manning

State Sovereign Immunity
Franchise Tax Board of California v. Hyatt

Statute of Limitations
Menominee Indian Tribe of Wisconsin v. United States

Voting Rights
Evenwel v. Abbot


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