Key Takeaways
- Fisher v. University of Texas (2016) reaffirmed that universities may consider race as one factor among many in a holistic admissions process, so long as the policy is narrowly tailored to achieve the compelling interest of diversity.
- The Supreme Court’s decision emphasized the need for periodic review and strict scrutiny of race-conscious admissions programs, ensuring that such policies are necessary and effective in promoting diversity.
- Fisher II has had a profound impact on affirmative action jurisprudence, shaping how educational institutions nationwide design and defend their admissions policies under the Equal Protection Clause.
Introduction
Fisher v. University of Texas at Austin (579 U.S. 365 (2016)), commonly referred to as Fisher II, is a landmark United States Supreme Court case that addresses the constitutionality of race-conscious admissions policies in higher education. The case, decided in 2016, has become a central reference point in the ongoing debate over affirmative action and the pursuit of diversity in American universities. The Supreme Court ultimately upheld the University of Texas at Austin’s admissions policy, holding that it was consistent with the Equal Protection Clause of the Fourteenth Amendment. This guide provides an in-depth analysis of the case’s background, legal arguments, Supreme Court reasoning, and its implications for future affirmative action policies.
For the full Supreme Court opinion, see Justia.
Background of the Case
The University of Texas Admissions Policy
The University of Texas at Austin (UT) employs a two-part admissions system. The first part, known as the Top Ten Percent Plan, guarantees admission to Texas students who graduate in the top ten percent of their high school class. This plan was designed to promote diversity by leveraging the state’s diverse public high schools. However, after filling most of its undergraduate class through this plan, UT uses a holistic review process to fill the remaining seats. In this process, various factors—including academic achievement, leadership, extracurricular activities, socio-economic status, and race—are considered.
The university’s goal was to create a diverse student body, which it argued was essential for providing educational benefits and preparing students for a diverse society. The use of race as one of several factors in admissions was modeled after the approach approved by the Supreme Court in Grutter v. Bollinger (539 U.S. 306 (2003)), which allowed for race-conscious admissions so long as they were narrowly tailored and part of a holistic review.
Abigail Fisher’s Challenge
In 2008, Abigail Fisher, a white female applicant, was denied admission to UT. Fisher argued that the university’s consideration of race in its admissions process disadvantaged her and other white applicants, constituting a violation of the Equal Protection Clause of the Fourteenth Amendment. She contended that UT’s policy was not narrowly tailored and that race-neutral alternatives could have achieved the university’s diversity goals.
Fisher’s legal challenge set the stage for a renewed examination of affirmative action in higher education. The case was first reviewed by the U.S. Supreme Court in 2013 (Fisher I), which remanded it to the Fifth Circuit Court of Appeals for further scrutiny of whether the admissions policy met the requirements of strict scrutiny, the highest standard of judicial review for policies involving race. The Fifth Circuit upheld the policy, leading to the Supreme Court’s second review in Fisher II.
For more details, see the Oyez summary.
Legal Framework: Equal Protection and Affirmative Action
The Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” This clause has been interpreted to prohibit states from discriminating on the basis of race. However, the Supreme Court has recognized that there are circumstances where the consideration of race may be permissible, provided that the state can show a compelling interest and that the policy is narrowly tailored to achieve that interest.
Affirmative Action Jurisprudence
Prior to Fisher, the Supreme Court had addressed affirmative action in higher education in cases such as Regents of the University of California v. Bakke (438 U.S. 265 (1978)), which prohibited racial quotas but allowed race to be considered as one factor among many, and Grutter v. Bollinger, which upheld the University of Michigan Law School’s holistic, race-conscious admissions policy.
The key requirements established by these cases were:
- Compelling Interest: The university must have a compelling interest in achieving diversity.
- Narrow Tailoring: The admissions policy must be precisely formulated to achieve that interest without unnecessary use of race.
- No Quotas: The policy must not establish fixed quotas for racial groups.
- Holistic Review: Race may be considered as one factor among many in an individualized review of applicants.
The Supreme Court’s Review: Fisher I and Fisher II
Fisher I (2013): Remanding for Strict Scrutiny
The Supreme Court’s first review of Fisher’s challenge, known as Fisher I (570 U.S. 297 (2013)), did not resolve the constitutionality of the UT policy. Instead, the Court clarified that courts must apply strict scrutiny to race-conscious admissions policies. This means the university bears the burden of proving that its use of race is necessary to achieve diversity and that no workable race-neutral alternatives would suffice.
The Court remanded the case to the Fifth Circuit Court of Appeals to apply this rigorous standard.
Fisher II (2016): Upholding the Policy
After the Fifth Circuit again upheld UT’s policy, the Supreme Court granted certiorari and heard the case as Fisher II. The central question was whether UT’s admissions policy was narrowly tailored to achieve the compelling interest of diversity, as required by the Equal Protection Clause.
In a 4-3 decision, the Supreme Court affirmed the Fifth Circuit’s ruling, holding that UT’s consideration of race in admissions was permissible under the Constitution.
The full opinion is available on Justia.
The Court’s Reasoning in Fisher II
Strict Scrutiny Applied
The majority opinion, authored by Justice Anthony Kennedy, reaffirmed that strict scrutiny applies to all race-conscious admissions policies. The university must demonstrate that its policy is narrowly tailored to achieve the compelling interest of diversity and that no workable race-neutral alternatives would produce the same results.
The Compelling Interest in Diversity
The Court accepted UT’s assertion that diversity yields important educational benefits, such as promoting cross-racial understanding, breaking down stereotypes, and preparing students for an increasingly diverse workforce. The Court emphasized that universities are entitled to deference in defining the educational benefits they seek to achieve through diversity.
Narrow Tailoring and Holistic Review
The Court found that UT’s policy was narrowly tailored because:
- It did not function as a quota system.
- Race was only one factor among many considered in a holistic review.
- The university regularly reviewed its policy to assess its necessity and effectiveness.
- UT had demonstrated that race-neutral alternatives, such as the Top Ten Percent Plan alone, would not achieve the same level of diversity.
Periodic Review Requirement
The Court stressed that universities must periodically review their admissions policies to ensure that the use of race remains necessary and that race-neutral alternatives are insufficient. This ongoing assessment is essential to satisfy the requirements of strict scrutiny.
Dissenting Opinions
Three justices—Clarence Thomas, Samuel Alito, and John Roberts—dissented. The dissenters argued that UT’s policy was not sufficiently justified and that the university had not demonstrated that race-neutral alternatives were inadequate. Justice Alito’s dissent, in particular, criticized the majority for deferring too much to the university’s judgment.
For a comprehensive timeline and analysis, see SCOTUSblog.
Impact and Implications
Affirmative Action Policies Nationwide
The decision in Fisher II reaffirmed the constitutionality of race-conscious admissions policies, provided they meet the demanding requirements of strict scrutiny. Universities across the country must ensure that:
- Their policies are holistic and do not rely solely or primarily on race.
- There are no quotas or fixed numbers for racial groups.
- They periodically review their policies for necessity and effectiveness.
- They can demonstrate that race-neutral alternatives would not suffice to achieve diversity.
This framework has guided the design and defense of affirmative action programs in higher education since 2016.
Ongoing Debate Over Affirmative Action
Fisher II did not end the debate over affirmative action. Critics argue that any consideration of race in admissions is inherently discriminatory, while supporters contend that such policies are essential for remedying historical inequalities and promoting educational benefits.
The ruling has been cited in subsequent challenges to affirmative action, and the issue remains contentious. For example, lawsuits against Harvard University and other institutions have continued to test the boundaries set by Fisher II.
For a detailed account of the Supreme Court’s decision and its impact, see The Texas Tribune.
Societal and Legal Significance
Beyond the legal technicalities, Fisher II has broader societal implications. The case reflects ongoing tensions in American society regarding race, equality, and the means by which the law addresses persistent disparities. The ruling underscores the judiciary’s role in balancing the pursuit of diversity with the constitutional guarantee of equal protection.
For further analysis, refer to the American Civil Liberties Union’s summary and the NAACP Legal Defense Fund’s perspective.
The University of Texas’s Policy in Practice
The Top Ten Percent Plan
The Top Ten Percent Plan is a distinctive feature of UT’s admissions process. It was enacted by the Texas Legislature in 1997 to increase diversity without explicit consideration of race, following the Fifth Circuit’s decision in Hopwood v. Texas (which temporarily barred affirmative action in Texas). The plan leverages the state’s segregated public school system, resulting in a racially diverse group of top-performing students.
Holistic Review and the Role of Race
For the remaining seats after the Top Ten Percent Plan, UT employs a holistic review that evaluates applicants on multiple criteria. Race is not assigned a numerical value or quota but is considered as one element that can contribute to the diversity of the incoming class. This approach is designed to ensure that no single factor, including race, is determinative.
Periodic Review and Data Analysis
UT is required to periodically review its admissions policy to assess whether the use of race remains necessary. This involves collecting and analyzing data on the composition of the student body, the effectiveness of race-neutral alternatives, and the educational benefits of diversity. The Supreme Court’s decision in Fisher II emphasized the importance of this ongoing scrutiny.
Legal and Practical Guidance for Institutions
Designing Compliant Admissions Policies
Universities seeking to implement race-conscious admissions policies must adhere to the principles articulated in Fisher II:
- Holistic Review: Admissions decisions should consider a wide range of factors, with race being only one among many.
- No Quotas: Policies must avoid fixed quotas or set-asides for racial groups.
- Periodic Review: Institutions must regularly evaluate whether the use of race is still necessary and effective.
- Documentation: Universities should maintain thorough records of their policy reviews, data analyses, and consideration of race-neutral alternatives.
Defending Policies in Court
When challenged, universities bear the burden of demonstrating that their policies are:
- Narrowly tailored to achieve the compelling interest of diversity.
- Supported by evidence that race-neutral alternatives are insufficient.
- Subject to ongoing, good-faith review and adjustment.
Legal teams should be prepared to present detailed data and analysis to support the necessity and effectiveness of their admissions policies.
Continuing Evolution of Affirmative Action Law
Subsequent Litigation
Since Fisher II, affirmative action policies have continued to face legal challenges. Notably, Students for Fair Admissions v. Harvard and similar cases have tested the limits of race-conscious admissions under the standards set by Fisher II. These cases underscore the dynamic nature of the law in this area and the importance of staying abreast of new developments.
The Future of Race-Conscious Admissions
The Supreme Court’s decision in Fisher II represents a careful balancing act between the pursuit of diversity and the constitutional guarantee of equal protection. While the Court upheld UT’s policy, it did so with the caveat that such policies must be regularly justified and narrowly tailored.
As the composition of the Supreme Court and societal attitudes toward affirmative action evolve, the legal landscape may shift. Institutions must remain vigilant in reviewing their policies and ensuring compliance with the latest legal standards.
Conclusion
Fisher v. University of Texas (Fisher II) stands as a pivotal case in the history of affirmative action in American higher education. The Supreme Court’s decision affirmed that universities may consider race as one factor among many in a holistic admissions process, provided that such policies are subject to strict scrutiny and ongoing review. The case has shaped the framework for designing, implementing, and defending affirmative action policies nationwide.
The ongoing debate over the role of race in admissions reflects broader societal questions about equality, diversity, and the means by which the law addresses historical and contemporary disparities. Fisher II remains a touchstone for legal practitioners, policymakers, and educational institutions navigating these complex issues.
For authoritative legal research and resources, visit Counsel Stack.
Disclaimer: This guide is an overview of Fisher v. University of Texas and is intended for informational purposes only. Affirmative action law is complex and evolving, and there are important nuances not covered here. For specific legal advice or the latest developments, consult a qualified attorney or conduct further research using reliable legal sources.
