Fisher v. University of Texas


The Supreme Court issued an opinion on affirmative action today – Fisher v. University of Texas.  To help you better understand the decision, below are some links to commentary on the matter and other helpful resources, including briefs and a transcript of the the Supreme Court oral argument.


Vikram David Amar, Does the Diversity Justification for Affirmative Action (Mis)Use Minority Students? Reassessing the Supreme Court’s Decision in Grutter

Michael Dorf, The Recent Supreme Court Affirmative Action Oral Argument Zeroes in on the Concept of “Critical Mass”

Vikram David Amar: If you (the Court) choose not to decide, you have still made a choice (at least for now)

District Court (W.D. Tex.)

Docket: Fisher v. University of Texas at Austin

Opinion: Fisher v. University of Texas at Austin (August 17, 2009)

 Appeals Court (5th Cir.)

Docket: Fisher v. University of Texas at Austin

Opinion: Fisher v. University of Texas at Austin (February 1, 2011)

 U.S. Supreme Court

Argument Audio and Transcript (October 10, 2012)

Merit and Amicus Briefs Filed (Via American Bar Association)

Opinion: Fisher v. University of Texas at Austin

Justia Opinion Summary:   Since the Court’s 2003 decision, Grutter v. Bollinger, the University of Texas at Austin has considered race as a factor in its undergraduate admissions process. A Caucasian, rejected for admission, sued, alleging that consideration of race in admissions violated the Equal Protection Clause. The district court granted summary judgment to the University. The Fifth Circuit affirmed. The Supreme Court vacated and remanded, reasoning that the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Supreme Court precedent. A university must clearly demonstrate that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is “necessary . . . to the accomplishment” of its purpose,” and “that the reasons for any [racial] classification [are] clearly identified and unquestionably legitimate.” A court may give some deference to a university’s judgment that diversity is essential to its educational mission, if diversity is not defined as mere racial balancing and there is a reasoned, principled explanation for the academic decision. The University must prove that the means it chose to attain diversity are narrowly tailored to its goal and that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” A reviewing court must ultimately be satisfied that no workable race-neutral alternative would produce the educational benefits of diversity. The Fifth Circuit simply presumed that the school acted in good faith and gave the plaintiff the burden of rebutting that presumption. Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice. On remand, the Fifth Circuit must assess whether the University has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.