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Fisher v. University of Texas, 570 U.S. ___ (2013), is a United States Supreme Court case concerning the affirmative action admissions policy of the University of Texas at Austin. The Supreme Court voided the lower appellate court's ruling in favor of the University and remanded the case, holding that the lower court had not applied the standard of strict scrutiny, articulated in Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1978), to its admissions program. The Court's ruling in Fishertook Grutter and Bakke as given and did not directly revisit the constitutionality of using race as a factor in college admissions.^[1]

The suit, brought by undergraduate Abigail Fisher in 2008, asked that the Court declare the University's race-conscious admissions inconsistent with Grutter, which had in 2003 established that race had an appropriate but limited role in the admissions policies ofpublic universities. While reasserting that any consideration of race must be "narrowly tailored", with Fisher the Court did not go on to overrule Grutter, a relief for civil rights groups who feared that the Court would end affirmative action thus reducing the number of black and Latino students at selective colleges and graduate schools. ^[2]

The United States District Court heard Fisher v. University of Texas in 2009 and upheld the legality of the University's admission policy in a summary judgment. The case was appealed to the Fifth Circuit which also ruled in the University's favor. The Supreme Court agreed on February 21, 2012, to hear the case. Justice Elena Kagan recused herself because she served as the Solicitor General when the Department of Justice filed a friend-of-the-court, or amicus curiae, brief in the Fisher case when it was pending in the U.S. Court of Appeals for the Fifth Circuit. On June 24, 2013, the Fifth Circuit's decision was vacated, and the case remanded for further consideration in a 7–1 decision, with Justice Ruth Bader Ginsburg dissenting. Justices Antonin Scalia and Clarence Thomas filed concurring opinions.

Applying the Supreme Court's 2013 decision, the Fifth Circuit once again found for UT Austin in 2014. Fisher again appealed the Fifth Circuit's decision, and the Supreme Court again agreed to hear her appeal. The case will be argued during the 2015-16 term of the Supreme Court on December 9, 2015.

Contents

 [hide] 

• 1Background
• 2Lower courts
• 3Supreme Court
  • 3.1Oral arguments
  • 3.2Opinions of the Court
• 4Back to the Fifth Circuit
• 5Return to the Supreme Court
• 6See also
• 7References
• 8Further reading
• 9External links

Background[edit source | edit]

Plaintiffs Abigail Noel Fisher and Rachel Multer Michalewicz applied to the University of Texas at Austin in 2008 and were denied admission. The two women, both white, filed suit, alleging that the University had discriminated against them on the basis of their race in violation of the Equal Protection Clause of the Fourteenth Amendment.^[3] The University of Texas at Austin accepts students in the top 10% of each Texas high school's graduating class, regardless of their race; under Texas House Bill 588, 81% of 2008's freshman class were admitted under the plan.^[4]

Applicants who, like Fisher, fail to graduate in the top 10% of their high schools, can still gain admission by scoring highly in a process that evaluates their talents, leadership qualities, family circumstances, and race.^[5][6] Fisher had a grade point average of 3.59 (adjusted to 4.0 scale)^[7] and was in the top 12% of her class at Stephen F. Austin High School.^[7] She scored 1180 on her SAT (measured on the old 1600-point scale, because UT Austin did not consider the writing section in its undergraduate admissions decision for the 2008 incoming freshman class).^[7] The 25th and 75th percentiles of the incoming class at UT-Austin were 1120 and 1370.^[7] She was involved in the orchestra and math competitions and volunteered at Habitat for Humanity.^[7]

During the case proceedings, Fisher enrolled at Louisiana State University, where she was in her final year as an undergraduate in 2012.^[8][9] In 2011, Michalewicz withdrew from the case, leaving Fisher as the sole plaintiff.^[5][9]

Lower courts[edit source | edit]

In 2009, United States District Court judge Sam Sparks upheld the University's policy, finding that it meets the standards laid out in Grutter v. Bollinger.^[8] That decision was affirmed by a Fifth Circuit panel composed of judges Patrick Higginbotham, Carolyn Dineen King and Emilio M. Garza. In his ruling, Higginbotham wrote that the "ever-increasing number of minorities gaining admission under this 'Top Ten Percent Law' casts a shadow on the horizon to the otherwise-plain legality of the Grutter-like admissions program, the Law's own legal footing aside".^[10]

A request for a full-court en banc hearing was denied by a 9–7 vote by circuit judges.^[11][12]

Supreme Court[edit source | edit]

In September 2011, lawyers representing Fisher filed petition seeking review from the Supreme Court.^[8][13] Plaintiff's legal team was assembled by the Project on Fair Representation, a Washington, D.C.-based legal defense fund active in attempts to overturn race-based laws, whose legal fees were paid by Donors Trust, a conservative donor-advised fund.^[14] On February 21, 2012, the court granted certiorari in Fisher v. University of Texas at Austin. Justice Elena Kagan recused herself from the case and did not participate in the court's discussions.^[15] Kagan's recusal was most likely due to her involvement with the case while she was Solicitor General.^[5]

Amicus briefs were filed by Teach for America, the Asian American Legal Foundation, the Asian Pacific American Legal Center, the Asian American Legal Defense and Education Fund, the California Association of Scholars and Center for Constitutional Jurisprudence, the Black Student Alliance at The University of Texas, the Mountain States Legal Foundation, the Pacific Legal Foundation, Peter Kirsanow, Stuart Taylor, Jr., and many others.^[16]

The case was on the Supreme Court calendar for the term beginning in October 2012.^[17][18] There were concerns that if the Court overruled Grutter, affirmative action at public universities would end in the United States.^[8] Some argued that the result of such a ruling would decrease the number of black and Hispanic students admitted to American universities while increasing the proportion of white and Asian students.^[8]

Oral arguments[edit source | edit]

On October 10, 2012, the Supreme Court heard oral arguments in the case. Bert Rein represented the petitioner, Gregory G. Garre, a former Solicitor General, represented the respondent, the university,^[19] and Solicitor General Donald Verrilli, Jr., presented the government's stance in support of the respondent.^[20]

During the beginning of the petitioner’s argument, Justices Sotomayor and Ginsburg asked questions about whether the case was moot. Specifically, they were concerned with the university's arguments that Fisher would not have earned admission regardless of her race, that she had already graduated from college, and that she only named the $100 application fee as real damages. Scalia commented that the harm of racial discrimination alone created an active controversy under the Court’s previous Equal Protectionjurisprudence.^[21]

Justices Scalia, Alito, and Roberts asked many questions about the definition of a “critical mass”, which Grutter named as the central measure of diversity. Scalia started calling it a “critical cloud” after the university’s lawyer failed, upon multiple requests, to define the central measure of diversity.^[21] Chief Justice Roberts asked whether an applicant who was one-quarter or one-eighth Latino would be permitted by the University to check the “Latino” box.^[21] Garre responded that the applicant was entitled to self-identify as any race, subject to discipline under the university's honor code, and that the University did not ever question that determination.^[21]

Legal analysts concurred that the process of oral argument indicated that a majority of the justices disliked the university's position.^[22]

Opinions of the Court[edit source | edit]

The opinion was issued on June 24, 2013--unusually late given that it was argued in October 2012. In a 7–1 decision, the Court vacated and remanded the Fifth Circuit's ruling. Writing for the majority, Justice Kennedy concluded that the Fifth Circuit failed to apply strict scrutiny in its decision affirming the admissions policy. Instead, he wrote, the Fifth Circuit held that Fisher could only challenge "whether the University's decision to use race as an admissions factor 'was made in good faith.' It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption".^[23] Kennedy argued that per the Grutter ruling, the burden of evidence primarily lies with the university "to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity".^[24]

Justice Scalia wrote a one-paragraph concurring opinion, stating that he still holds the view that he first expressed in his concurring opinion in Grutter: "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception".^[25] Because the petitioner did not ask to overturn the holding in Grutter, that there is a compelling evidence in the educational benefits of diversity to justify racial preferences in university admissions, he joined with the majority in full.^[26]

Justice Thomas wrote his own concurrence, stating his reasons for overturning Grutter, and ruled that the use of race in higher education admissions violated the Equal Protection Clause. Thomas concluded that Grutter was a radical departure from the Court's application of the strict scrutiny test. According to Justice Thomas, strict scrutiny had only been previously satisfied where the state actor was acting to protect national security or to remedy its own past discrimination.^[27]

Additionally, comparing such university admissions with desegregation, he wrote that "there is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits".^[28] He also wrote that he believed that such admissions programs may actually be more harmful: "Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates...the University’s discrimination does nothing to increase the number of blacks and Hispanics who have access to a college education generally...any blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete".^[29]

In her dissenting opinion, Justice Ginsburg explained her reasons for affirming the Fifth Circuit's ruling. Noting that the university's 10% plan admitted students regardless of their race, she argued that "the University’s admissions policy flexibly considers race only as a 'factor of a factor of a factor of a factor' ... and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University's educational objectives ... As I see it, the Court of Appeals has already completed that inquiry, and its judgment, trained on this Court's Bakke and Grutter pathmarkers, merits our approbation".^[30]

Back to the Fifth Circuit[edit source | edit]

In June 2013, the Supreme Court ruled the Fifth Circuit had failed to apply strict scrutiny to the university's race-conscious admissions policy and sent the case back to the Fifth Circuit court. In November, the Fifth Circuit court heard oral arguments from both sides. In their questions during the arguments, Judges Patrick Higginbotham, Carolyn Dineden King, and Emilio M. Garza focused on the way the university defines "critical mass" as well as past attempts the university has made to increase minority enrollment.^[31]

'Fisher's attorneys argued that race was not necessary in admissions decisions because a "critical mass" of minority students was already achieved through neutral incentives.”[^32]  On July 15, 2014, the Fifth Circuit announced its decision in favor of UT Austin, with Judge Garza dissenting. In its decision, the majority wrote, “It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity.”[32]  In his dissenting opinion, Judge Garza asserted that the Court erred by not demanding that the University clearly define what it meant in seeking a "critical mass" of minority students[32]. Fisher sought a rehearing en banc with the Fifth Circuit which was denied on 12 of November in a 10-5 decision.^[33] Fisher then filed a petition for certiorari to the Supreme Court.^[34]y

Return to the Supreme Court[edit source | edit]

On June 29, 2015, the Supreme Court announced that they would hear another challenge to UT Austin's admissions policy. The case has been assigned docket number 14-981 and will be heard on December 9.^[35]e

Ms.Fishers attorneys will again focus,as they previously did the last time the Court took the case, on the question of whether the University has complied with the guidance provided in its past decision.

On September 10, 2015 and Amicus Curiae Brief was filed by two members of the U.S. Commission on Civil Rights in support of Abigail Fisher. The two commissioners filed as private citizens and introduced research in the brief that indicates race-preferential admission policies may actually harm the admitted students in that these students typically achieve lower grades as compared to grades they would have received from schools who would have admitted them based upon their credentials and not race.

On November 4, 2015 an opposing view friend-of-the-court brief was filed by California Attorney General Kamala D. Harris in which she urged the Court to reaffirm Grutter and allow public universities to consider race as one factor in its admission decisions. The brief argues that public universities, "to increase the number of underrepresented students of color", be able to consider race to ensure that students are a representation of a broad range of backgrounds and experiences and that this diversity would eventually produce benefits that would extend to our society. Attorney General Harris also filed a friends-of-the-court brief in the first trail in 2012.

On December 9,2015, for the second time since 2013, the court again heard arguments in the case that could have far reaching consequences for affirmative action at colleges and universities around the nation. just as in the first case, Justice Anthony Kennedy holds the crucial vote as a divided court considers whether race may be used as one criteria for admission.

Based upon the questioning, it is difficult to forecast which way the court is leaning. The court's conservatives Justices were skeptical of the University's plan. Justice Clarence Thomas did not ask any questions, but Justice Scalia was blunt and direct when he questioned whether increasing the number of African American's at the University of Texas was in the black students best interests. "There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do as well, as opposed to having them go to a less-advanced school, a slower-track school where they will do well." His line of questioning was hostile to racial preferences and affirmative action as he noted a friend of the court brief in the case that said most black scientists do not come from the most highly selective schools. "They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them." Chief Justice John Roberts continued on this line when he questioned the value of diversity in at least some academic setting. " What unique perspective does a minority student bring to a physics class".

The Courts liberal justices, Breyer, Ginsburg and Sotomayor were supportive of the University's program, all agreeing that the policy was a minimal use of race in support of creating a diverse student body that provides a richer learning environment or all. Justice Elena Kagan,the other liberal justice on the court,once again recused herself from the case.

A decision is due in 2016.