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Brief in Favor of the Petitioner for the Supreme Court case of Fisher v. Texas

February 19th, 2013
Political ScienceFrisco CTE Center

Fisher V. Texas Brief

Table of Cited Authorities:


Texas Association of Scholars Brief in support of Petitioner, Petitioner brief for Supreme Court case Fisher v. Texas, American Civil Rights Union Brief in support of Petitioner, The Constitution of The United States, Martin Luther King Jr. “I Have a Dream” speech.

Statement of argument:

The University of Texas at Austin’s admission priorities are inherently unequal under the United States Constitution. Abigail Fisher was denied admission to the university due to the unfair consideration of minority applicants. Therefore, the university should eliminate any prejudice in determining college admissions.


“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens…the law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” This quote by Justice John Marshall Harlan embodies the spirit of equality under all laws in the United States as protected by the Constitution of the United States. By giving preference to minority students, the University of Texas at Austin has deliberately defied the purpose of the fourteenth amendment, and in doing so, has transgressed against the Constitution. In the case Grutter v. Bollinger, the Supreme Court held that colleges must give “serious, good-faith consideration” to any race-neutral alternatives to affirmative action plans while trying to promote diversity. In the state of Texas, the “Top 10 Percent Plan” has allowed the university to gain sufficient numbers of minority students, and therefore, has no need to create a bias based off minority status.

“In 2003, UT declared that it had ‘effectively compensated for the loss of affirmative action.’” In the university’s own words, they have clearly stated that because of the “Top Ten Percent Plan”, they have gained adequate numbers of minority students, including African-American, Hispanic, and Asian-American students.  According to the University, “UT decided that it would use race to benefit African-American and Hispanic applicants, groups that it considers ‘underrepresented.’ However, according to the university’s own records “In 2004, the freshman class was 21.4% African American and Hispanic, and 17.9% Asian American.” This would make up almost 40% of the entire freshman class with just those three minority groups. Although the University states that the minority groups are underrepresented, they only represent 8% less than the admitted number of Caucasian students for the years 2010 and 2011. In 2012, the percentage for Caucasian students was only 46%. In recent years, the minority population as increased to 51% of the total freshman admissions. This clearly shows that there is no longer a need to consider race for admissions due to the large number of minorities represented since the implementation of the top ten percent plan.

The University of Texas at Austin claims to use a potential student’s ethnic background in order to promote diversity on their campus, however why is ethnicity the only factor taken into consideration? In order to truly promote diversity the university would have to take into account everything that could possibly set an individual apart from his or her peers. This includes a large variety of many different things however the most prominent would be religion. There are a vast number of religions on the earth, and there are even more separate branches of those religions. Therefore promoting religious diversity should be one of UT Austin’s top priorities. In the Brief of the Texas Association of Scholars, it is stated, “If diversity is of such educational importance, why is religious diversity ignored? The religious backgrounds of applicants, be they Catholic, Jewish, Baha’i, Buddhist, Hindu or any other eastern religion, are of no interest to the admissions office.” If the color of a person’s skin is important to determine who gets accepted, then the person’s religious beliefs should also be one of the foremost concerns of the college. Without keeping in mind all of the different religious groups on campus, there would be no way for the University of Texas to keep a fully representative diverse group of backgrounds for its entire freshman class.  As the Texas Association of Scholars states, “Clearly, these applicants’ diverse religious views, opinions and related life experiences are of value in stimulating classroom and dormitory interaction. Why is ‘diversity’ for these favored groups more educationally important than ‘diversity’ for the disfavored groups?” If the university was actually trying to increase the diversity of their freshman classes on campus than they would take into account more factors that set students apart when making admissions decisions, rather than simply granting admission to a student because of his or her race.

In 2008, the year that Abigail Fisher was applying to college, UT Austin’s SAT average for the 25th percentile was an 1120, and was a 1370 for the 75th percentile. Abigail Fisher’s SAT score in that same year was an 1180. Therefore, she clearly fit within the admittance scale of the SAT average scores for UT Austin in 2008. Ms. Fisher was also in the top twelve percent of her class at Stephen F. Austin High School, which placed her barely out of the range of the top ten percent but still left her at a very competitive rank. While in high school, she was involved in many extracurricular activities such as Orchestra, math competitions, and Habitat for Humanity. Based on these criteria, Abigail Fisher was an adequately qualified student for admittance to UT Austin. Therefore, it can be argued that Abigail Fisher was denied admission to the University of Texas at Austin simply because she would not promote the diversity that the UT Austin was looking for in the upcoming freshman class.


As stated in the Texas Association of Scholars, “Assertions of ‘Academic Freedom’ do not authorize destruction of a citizen’s constitutional right to be free from invidious discrimination that violates the 14th amendment.” The university cannot be allowed to continue to allow race into its admissions process because it is directly violating the rights of Abigail Fisher and is therefore unconstitutional. According to the Texas Association of Scholars brief, the Defunis v. Odegard (1974) case was determined by only two other cases and “neither case had anything to do with the academic freedom in the context of racial preferences violating the 14th amendment rights of disfavored applicants for admission to a university. The Court found in favor of both the plaintiff’s because of their First Amendment’s free speech rights had been violated. This Court must rule in Fisher’s favor because her 14th amendment rights have similarly been violated.” The University of Texas at Austin denied Abigail Fisher, an adequately qualified student, admission to their university only because she did not match the racial profile they had been looking for. This is a direct violation of her constitutional rights and therefore must be seen as such by the Supreme Court.


Although the University of Texas at Austin does not have a direct quota system for minority students, they utilize a system that unjustly gives preference to those of minority status. As stated in the American Civil Rights Union brief, “ In 2008 when the petitioner applied, with the racially based admission policies in force, a total of 216 African-American and Hispanic students were admitted who were not among the top 10% in a Texas high school, compromising 3.4% of the incoming Freshman class.” These numbers are directly representative of the use of the personal achievement index and academic index scoring system. This system plots students based off their class rank and standardized test scores (academic index) and the composite score of their essays that were submitted to the university (Personal Achievement Index). The Personal Achievement Index also takes into account another factor: The applicants’ race. By increasing a student’s score simply based off of the color of their skin the university is providing minority students that they consider underrepresented with an unfair advantage over all other students not admitted under the “Top Ten Percent Plan”. That advantage is what kept Abigail Fisher from being admitted to the University of Texas at Austin. Therefore, since she was denied admission because of her race, the universities policies violate the Equal Protection Clause of the fourteenth amendment and are unconstitutional.



Dr. Martin Luther King Jr. once said that we should judge a person by the content of their character and not the color of their skin. This belief was the root for many of the equal opportunity laws that were put in place after his death. By using race as a determining factor in their admissions decisions the University of Texas at Austin has gone against this core value and is placing more value on a person’s race than on their individual ability. The Equal Protection Clause in the 14th amendment protects against this kind of discrimination for all people not just minorities. Abigail Fisher was denied admittance to the university of her choosing because she was white, and therefore would not promote the kind of diversity that the UT Austin was looking for on its campus. The consideration of an applicant’s race is a tactic that has been proven obsolete, as other race-neutral programs have allowed minorities the same opportunities for admittance as any other race. The “Top Ten Percent Plan” that Texas implemented has allowed the level of minority students that are admitted to colleges in the state increase in areas, if not at least maintain the levels previously lost by the abandonment of quota and affirmative action systems. The university itself declared that because of the “Top Ten Percent Plan” they had compensated for the loss of the affirmative action that had provided them with most of their minority students. UT Austin claims that the reason it still needs to consider race in its review of applications is because they are attempting to promote diversity within the new freshman classes. However, they only consider different races when looking for diversity and completely ignore other factors. This includes different religions, which are a very large part of an individual’s identity and can be an isolating factor just like race is. By choosing to only promote racial diversity the University of Texas at Austin has shown that they are only interested in improving diversity they deem important, which is an extremely unfair policy. UT Austin’s next claim is that Abigail Fisher would not have been offered admission to the university even if she had not been white because she did not meet their admission requirements. However, Ms. Fisher was shown to excel or meet any criteria for admittance that the university had in 2008. Therefore the only other reason that UT Austin would have for denying her admission would be that she did not meet their criteria because she did not have minority status. Also previous cases have shown that, “assertions of ‘Academic Freedom’ do not authorize destruction of a citizen’s constitutional right to be free from invidious discrimination.” By choosing not to admit Abigail Fisher, the university blatantly disregarded her right to be free from the invidious discrimination of her race. The University of Texas at Austin may not have a quota or affirmative action system in place, but it does award extra consideration to students that belong to groups they consider to be underrepresented minorities. This extra consideration places anyone that is not in the groups that are aided by the system at an unfair advantage and discriminates against them because they do not belong to a certain race.

Maintaining diversity on a campus has become a growing concern for colleges in recent years. They believe that by using systems such as the one implemented by UT Austin they can solve that problem, however race-neutral plans have proven to be as or more effective. The race-neutral programs also do not violate the constitutional rights of those who would have been left out under the other systems. Colleges also receive such large numbers of freshman in their upcoming classes that they are guaranteed to receive a fairly diverse group, and because of that factor and laws such as the “Ten Percent Plan” the use of race in admissions decisions has become obsolete. The University of Texas at Austin violated the 14th Amendment rights of Abigail Fisher when they denied her admission due to her race, and so for the foregoing reasons, the judgment of the Fifth Circuit should be reversed.

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