Fisher v. Texas and the State of Affirmative Action in America Today

For my day job, I've been working on a couple of research pieces on affirmative action and the recent U.S. Supreme Court ruling in the case of Fisher v. Texas.  For those who might be interested in learning about this recent ruling and its implications for educational affirmative action in the U.S., I thought I'd pass my policy brief along...

In its recent ruling of Fisher v. Texas, the United States Supreme Court upheld race-based affirmative action in university admissions in theory, but opened up the door to future constitutional challenges.[i]  This policy brief analyzes the Fisher v. Texas case and discusses its policy ramifications for Students of Color higher education.

The Case

Plaintiff Abigail Noel Fisher brought her lawsuit against the University of Texas at Austin (U.T. Austin) on April 7, 2008 in the Western District Court of Texas.[ii]  Fisher claimed that the race-conscious admissions policies of U.T. Austin violated her constitutional rights according to the Equal Protection Clause of the 14th Amendment.

Fisher, a white female, graduated from Stephen F. Austin High School in Sugar Land, Texas with a grade point average of 3.59.  She took the Scholastic Assessment Test (SAT) twice—scoring 1170 on her first attempt and 1180 on her second.  Significantly, she ranked in the top 12% of her graduating class.  Upon application, Fisher was denied admission to U.T. Austin, but offered admission to its Coordinated Admission Program (CAP). Students enrolled in CAP are allowed to enroll in another University of Texas campus, and, upon the completion of CAP requirements, are guaranteed admission to the College of Liberal Arts or the College of Natural Sciences at U.T. Austin after their freshman year.

Rachel Multer Michalewicz was added as a co-plaintiff on April 17, 2008.[iii]  Also a Caucasian female, Michalewicz graduated from Jack C. Hays High School in Buda, Texas with a 3.867 grade point average.  She scored 1290 on the SAT and was at thetop 10.14% of her graduating class. Like Fisher, Michalewicz was also denied admission to U.T. Austin.

Plaintiffs were denied admission to the University of Texas based upon two admissions policies:  1. The Top Ten Percent Law and, 2. The Academic Index (AI)/Personal Achievement Index Plan (PAI). The Top Ten Percent Law, passed by the Texas state legislature in 1997, guarantees admission to U.T. Austin to all students graduating in the top ten percent of their public high school class.  In 2008, 88% of the slots dedicated to Texas state residents were filled based upon the Ten Percent policy.[iv]  Only 12% of Texas state resident admissions—1,216 slots--were made based upon AI and PAI.

AI was calculated based upon high school class ranking, successful completion of college preparatory curriculum, and standardized test scores.  PAI scores considered the following factors:  personal essays, leadership experience, extracurricular activities, awards/honors, work history, service to the school or community, and other special circumstances.  Race, ethnicity, and socioeconomic status were factors considered under the category of “special circumstances.”  Under this rubric, some students were admitted based upon their high AI scores alone; those with lower AI cores were admitted based upon joint consideration of AI and PAI scores.

Fisher and Michalewicz were denied admission to the University of Texas based upon both the Ten Percent policy and the AI/PAI Plan.

Legal Issues

Fisher and Michalewicz claimed that the AI/PAI Plan violated their constitutional right to Equal Protection because of its explicit consideration of race.  In order for its race-conscious admissions policy to be found constitutional, the University of Texas was required to prove that its policy was justified by a “compelling governmental interest” and “narrowly tailored.”  Since plaintiffs did not challenge the university’s stated compelling interest in the benefits associated with educational diversity, the main focus of contention was whether or not the AI/PAI plan was narrowly-tailored.[v]

In determining the constitutionality of the U.T. admissions policy, the District Court turned to the United States Supreme Court precedent of Regents of Univ. of Cal. v. Bakke (1978) and Grutter v. Bollinger (2003).[vi]  In Bakke and Grutter, the Supreme Court held that educational diversity represents a compelling interest.  In Grutter, the Supreme Court further ruled that race-conscious admissions programs are considered narrowly-tailored if they provide individualized and holistic consideration of every applicant.   Although race may be explicitly considered as one factor in admissions decisions, racial considerations may not rise to the level of being a decisive factor.  Moreover, according to the court, quotas are always unconstitutional.

In direct challenge to Grutter, Fisher and Michalewicz contended that race should not be allowed as a specific factor in university admissions decisions if race-neutral alternatives are available.  According to plaintiffs, the race-conscious admissions policy of the University of Texas was not narrowly-tailored—even though it complied with the clear language of Grutter--because race-neutral policies such as the Top Ten Percent Law were available which would effectively increase student body diversity.  This reasoning was so clearly at odds with the Supreme Court’s holding in Grutter that it led the Texas Solicitor General to famously comment, “If the Plaintiffs are right, Grutter is wrong” (Parilo, 2006).

District Court Judge Sam Sparks ruled in favor of the University of Texas.  In his decision for summary judgment, Sparks stated that the U.T. admissions policy was narrowly-tailored according to Grutter, and therefore constitutional according to the Equal Protection Clause of the 14th Amendment.

Following their loss in the Federal District Court, Fisher and Michalewicz challenged the lower court ruling in the 5th Circuit Court of Appeals.  On January 18, 2011, the ruling was unanimously upheld by a four-judge panel of the 5th Circuit Court of Appeals.[vii]  Fisher subsequently appealed to The United States Supreme Court and was granted certiorari on February 21, 2012.

The United States Supreme Court

The Supreme Court issued its decision in Fisher v. University of Texas et al. on June 24, 2013.[viii]  In a 7-1 ruling, the Supreme Court vacated the decision of the lower court and ordered the case remanded to the 5th Circuit Court of Appeals.[ix]   Rather than address the substantive legal issues raised by the case, however, the Supreme Court remanded the case on the grounds that the 5th Circuit Court failed to properly apply the legal test of “strict scrutiny.”   Specifically, the Supreme Court held that the appeals court erred in deferring to the University of Texas’ judgment that its admissions program was “narrowly tailored” and “necessary” for the promotion of student body diversity:

“Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal.  On this point, the University receives no deference…But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, 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.”[x]

Policy Implications

In basing its ruling upon such narrow grounds, the Supreme Court upheld, in theory, the constitutionality of race-based affirmative action in university admissions.[xi] This is good news for Students of Color in higher education because race-based affirmative action has been an important tool in the promotion of educational achievement, especially at elite colleges and universities.

Although on the surface this appears to be good news for advocates of affirmative action, a close reading of Justice Kennedy’s opinion reveals that the door to future constitutional challenges may have been opened by this case.   In a nod to plaintiff Fisher, Justice Kennedy’s opinion might be read to imply that the explicit consideration of race may not always be “necessary” to achieve the educational benefits of diversity when effective race neutral alternatives are available.

Kennedy’s opinion seems to hint at the idea that the Top Ten Percent Law is an effective race-neutral policy which produces high levels of diversity, and therefore, that the race-conscious AI/PAI Plan is not “necessary” or narrowly-tailored:

“Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity…The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”[xii]

In addition to his heavy insistence upon the consideration of non-racial approaches, Kennedy also cites statistics which appear to demonstrate that the University of Texas had greater success in promoting racial diversity when it implemented solely race-neutral admissions policies than when it utilized race-conscious policies:

“Before the admissions program at issue in this case, in the last year under the post-Hopwood AI/PAI system that did not consider race, the entering class was 4.5% African-American and 16.9% Hispanic.  This is in contrast with the 1996 pre-Hopwood and Top Ten Percent regime, when race was explicitly considered, and the University’s entering freshman class was 4.1% African-American and 14.5% Hispanic.”[xiii]

These statistics, coupled with his strong emphasis upon the viability of race-neutral alternatives, seem to reflect a belief by Justice Kennedy that the explicit consideration of race is not necessary for the promotion of a diverse student body at the University of Texas.  If interpreted in this manner by the 5th Circuit Court of Appeals on remand, Kennedy’s opinion may provide legal justification for the outlawing of race-conscious admissions policies.   In turn, such a decision by the 5th Circuit could embolden opponents of affirmative action to raise similar lawsuits in other jurisdictions throughout the country.

Fortunately, social scientists have persuasively refuted the notion that race-neutral admissions policies such as the Top Ten Percent Law are just as effective as race-based affirmative action in promoting student body diversity.  Harris and Tienda have specifically examined the negative impact of the Top Ten Percent Law upon Latino representation at the University of Texas, and demonstrate that race-conscious admissions policies are the most efficient means of diversifying college campuses, especially in highly segregated states like Texas (Harris and Tienda 2012).

Other scholars have similarly highlighted the negative impact which race-neutral admissions policies have had upon Latino and African American representation in the public university systems of California, Washington, and Florida (Barreto and Pachon 2003; Brown and Hirschman 2006; Colbourn, Young, and Yellen 2008 ).  These various studies establish that the explicit consideration of race is indeed “necessary” for the promotion of meaningful diversity in public colleges and universities in the United States.

As we wait for the 5th Circuit Court of Appeals to issue its new ruling in the Fisher case, it makes sense to implement a mixed strategy of race-conscious and race neutral policies to continue to promote educational achievement among Students of Color.  As long as race-based affirmative action in university admissions is still the law of the land, we should continue to use it as an important tool to improve minority representation in higher education.  But we should not stop there.  It is also important to consider other strategies such as increased support and funding for outreach programs targeting underrepresented Latino populations (Lomibao, Barreto and Pachon 2003).   These outreach efforts, moreover, should encompass both the K-12 and community college levels.

Another viable strategy is to increase the cultivation of college-going cultures at under-resourced high schools with significant Latino and African Americans (Harris and Tienda 2012). This approach has a proven track record of success and has the added  benefit of being relatively inexpensive.  A buttressing of financial aid programs is also important to support the matriculation and graduation of the many Latino and African American students who are successfully admitted to elite colleges and universities every year, but who come from low-income backgrounds (Harris and Tienda 2012).

It's important to note that Christians can, and are, playing an important role in implementing all of these strategies.  The most impactful Christian implementation of these strategies that I know of is being undertaken by the burgeoning Christian urban youth workers movement and the Christian Community Development Association (CCDA).  For more on the urban youth workers movement, check out the Urban Youth Workers Institute website led by Larry Acosta:  and the CCDA website:


Robert Chao Romero





[i] Fisher v. University of Texas at Austin et al. , U.S._____(2013).  For further discussion of the Supreme Court ruling in the Fisher case see:

[ii] Fisher v. Univ. of Tex. at Austin et al., 645 F. Supp. 2d 587, 590 (W.D. Tex. 2009).

[iii] Rachel Michalewicz was a party in the initial lawsuit and appeal to the 5th Circuit, but dropped out of the case at the Supreme Court level.

[iv] The University of Texas  reserves 90% of the slots of each freshman class for Texas residents; the remaining 10% are for non-resident and international students.

[v] In asserting diversity as its compelling interest, the University of Texas followed the clear holding of the United States Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003).

[vi] Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 305 (1978); Grutter v. Bollinger, 539 U.S. 306 (2003).

[vii] Fisher v. University of Texas at Austin et al., 631 F.3d 213.

[viii] Fisher v. University of Texas at Austin et al. , U.S._____(2013).


[ix] Justices Alito, Breyer, Kennedy, Roberts, Scalia, Sotomayor, and Thomas voted in favor of this ruling.  Justice Ruth Bader Ginsburg issued a dissenting vote, and Justice Elena Kagan took no part in the consideration or decision of the case.


[x] Fisher v. University of Texas et al., U.S.___(2013), 10.

[xi] Although race-conscious admissions policies in public universities are legally permissible according to Fisher, they are not constitutionally required.  California, Michigan, Washington, Florida, New Hampshire, Arizona, and Nebraska have all passed voter referendums banning race-based affirmative action in higher education.  These anti-affirmative action laws, moreover, have been consistently upheld as constitutional by federal courts.  In October 2013, the United States Supreme Court is scheduled to hear oral arguments in a case called, Schuette v. BAMN, which has the unlikely potential of striking down such voter referendums as unconstitutional.  At issue in Schuette is whether or not Michigan’s Proposal 2 violates the Equal Protection Clause by impermissibly restructuring the political process along racial lines.  See, Coal. to Defend Affirmative Action v. Regents of the Univ. of Michigan, 701 F.3d 466 (6th Cir. 2012) [2012 BL 298649].

[xii] Ibid.

[xiii] Ibid., 3