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Lesson Plan for Fisher v. University of Texas

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Certiorari granted by the United States Supreme Court on February 21, 2012
Oral arguments scheduled for October 10, 2012


The Parties

Petitioner: Abigail Fisher


University of Texas, at Austin

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The Questions Presented

Is a university permitted to use race as a factor when making undergraduate admissions decisions?
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Case Background

Affirmative Action: A Brief Overview

This case brings the public debate about affirmative action in education to the forefront once again. The Supreme Court dealt with the issue in 1978 and, for the first time, held that a school’s affirmative action program was unconstitutional. In a split decision, the court held that having a specified quota for minority students was illegal, however, the university could take race into account in other ways. Universities have used this holding to shape their admissions programs — steering away from strict quotas and embracing a system where the applicant’s race plays a role in their ultimate decision. Such a system at the University of Texas gave rise to this case.

To learn more about how the framers of the 14th Amendment viewed race-conscious measures, please check out this informative report from our friends at ConSource.

Facts of the Case

Abigail Fisher, a white high school student from Sugar Land, Texas, applied to the University of Texas at Austin during her senior year and her application was rejected. Based on a statewide admissions program, the top 10 percent of students at each high school are automatically admitted to state universities. Students who are not within the top 10 percent may also apply to state schools, but for these students, including Fisher, admissions counselors consider various factors, such as the applicant’s race. Such an admissions process was approved by a 2003 Supreme Court case, Grutter v. Bollinger, that permitted universities to take into account an applicant’s racial background in admissions, as long as it was only one factor among many.

Fisher contends that, because preference was given to racially diverse candidates, she was denied admission to the school on the basis of her race. She sued the school under the Equal Protection Clause, claiming that the Constitution forbids such discriminatory treatment.

At the District Court

The U.S. District Court for the Western District of Texas heard the case, and in an opinion written by Judge Sam Sparks, upheld the university’s admissions program. Fisher appealed this judgement.

Opinion of the Court of Appeals

The subsequent appeal was heard by the Fifth Circuit Court of Appeals. The Fifth Circuit agreed with the lower court and upheld the University of Texas admissions policy as well. Judge Patrick Higginbotham, writing for the Court, compared the program at Texas with a similar admissions program that the Supreme Court had found constitutional in the case Grutter v. Bollinger. The Court held that the Texas program, although it factored in the applicant’s race, did not violate the Equal Protection Clause because it was “narrowly tailored” to meet the school’s “compelling interest” to promote diversity on campus.

Fisher appealed this judgment to the Supreme Court. On February 21, 2012, the Court decided to hear the case and granted certiorari. Oral arguments are scheduled for October 10, 2012.

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The Law

The Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States of America

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

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Relevant Precedents

Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

In Bakke, the Supreme Court addressed affirmative action in university admissions for the first time. The 5-4 majority held that U.C. Davis Medical School violated the Equal Protection Clause of the Constitution by creating an application process where 16 out of 100 spots for incoming students were reserved for minority candidates. The Court specified that, while such a “quota system” is unconstitutional, the school may use the applicant’s race as a consideration on other ways because the school has a compelling interest in encouraging diversity in its student body. The opinion was very fractured, and there was no clear majority position.

Grutter v. Bollinger, 539 U.S. 306 (2003)

In a 5-4 vote, the Supreme Court upheld a University of Michigan Law School admissions program that put “substantial weight” on a applicant’s race in order to ensure diversity on campus. The Court evaluated the constitutionality of such a program under the Equal Protection Clause, using their ruling against the quota system in Bakke as a constitutional yardstick. Writing for the majority, Justice Sandra Day O’Connor wrote that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” Because the Michigan admissions program had the goal of attaining a “critical mass” of racially diverse students on campus, it was distinguishable from the illegal hard-line quota in Bakke. Notably, Justice O’Connor also mentioned that, while diversity on campus is an important aim, this kind of affirmative action program should have a time limit; she predicted that “25 years [after this case], the use of racial preferences will no longer be necessary to further the interest approved today.”

Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007)

In this case, the Court considered affirmative action in the high school setting. In Seattle, students within a district can apply to the high school of their choice. The most popular school choices become oversubscribed, so school administrators must decide which students will receive their top choice. One of the most important factors in their decision was the student’s race, and often, the assignments would be done in such a way that would ensure racial diversity at each school. Chief Justice Roberts, writing for the five justice majority, invalidated the program. He held that it violated the Equal Protection Clause, and distinguished it from Grutter v. Bollinger because the program’s only goal was to ensure racial diversity instead of more holistic “diversity in higher education.”

Ricci v. DeStefano, 129 S. Ct. 2658 (2009)

Twenty firefighters sued the New Haven Fire Department, alleging that they were passed over for promotions solely on the basis of their race. The firefighters involved in the case, 19 white and 1 hispanic, outperformed minority candidates on a test to determine which employees would be promoted. As a result, the test results were discarded and no promotions were awarded. The Supreme Court held that this action by the fire department violated Title VII of the Civil Rights Act of 1964. The five justice majority opinion was authored by Justice Kennedy, who wrote that Title VII and the Court’s decision ensures “that the workplace be an environment free of discrimination, where race is not a barrier to opportunity.”

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Justice Voting History

This chart could help with predicting the outcome of the case and how the Justices will vote. But be
careful: a lot will depend on the facts of this case and not how someone has voted in the past. [Note: the Justices are listed in order of seniority with the Chief Justice first.]

Note: Justice Kagan has recused herself from deciding Fisher v. Texas.

Grutter v. Bollinger (2003) Parents Involved v. Seattle (2007) Ricci v. DeStefano (2009)
Roberts Not yet on Court NC NC
Scalia NC NC NC
Kennedy NC NC NC
Thomas NC NC NC
Ginsburg C C C
Breyer C C C
Alito Not yet on Court NC NC
Sotomayor Not yet on Court Not yet on Court Not yet on Court
Kagan Not yet on Court Not yet on Court Not yet on Court
C The Justice voted that the affirmative action program at issue was constitutional.
NC The Justice voted that the affirmative action program at issue was unconstutional.
Not yet on Court The Justice was not yet on the Court when the case was decided.

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The Arguments

Abigail Fisher (Petitioner)

In order to argue that the affirmative action program put in place in Texas is invalid, Fisher relies on the Equal Protection Clause of the 14th Amendment. The Equal Protection Clause ensures that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Because the University of Texas is a public school (primarily funded by the state), this prohibition applies to its admission policies. Fisher argues that, by denying her admission on the basis of her race, she faced racial discrimination and therefore did not receive the equal protection under the law that the 14th Amendment requires.More specifically, to prove this point, she distinguishes the program at University of Texas from the program the Court upheld in 2003 with Grutter v. Bollinger. In Grutter, the Court held that the affirmative action program was constitutional because it was “narrowly tailored”  and because it was necessary to further a “compelling interest.” Fisher argues that these requirements were not met in the case at hand. First, she alleges that, merely because race is just one factor of many considered in admissions, the program is not narrowly tailored, nor is it necessary to ensure diversity at the university.Beyond just distinguishing her case from the one in Grutter, Fisher goes a step further, asking the Court to reconsider its holding in the 2003 case. She calls for the Supreme Court to “overrule Grutter to the extent it abandons this essential aspect of equal-protection doctrine.”

University of Texas (Respondent)

The Respondent, The University of Texas at Austin, argues that the admissions program they’ve put in place conforms to the standards set in cases like Bakke and Grutter. The University describes their use of race in the admissions process as “highly individualized and modest,” and points out that they have set no target for minority admissions, which distinguished their program from the one struck down in Bakke. Although the school admits that racial diversity is a “major priority,” they also stress that many other factors play into the decision of whether a student will be admitted, such as: leadership experiences, socioeconomic background, and special artistic or other talents. Based on this process, the University maintains that its review of Fisher, and other students like her, was “holistic” and consistent with the standard set in Grutter.

Also, the respondent rebuts Fisher’s claim that the Top 10% Program — allowing automatic acceptance to state schools of students in the top ten percent of their high school class — was unconstitutional. The University points out that the Court in Grutter confronted a similar program and found that “percentage plans are a complete, workable alternative to race-conscious holistic review.”

In sum, the respondent supports the reasoning of the Fifth Circuit Court of Appeals, and asks the Supreme Court to uphold its affirmative action admission program as it did in the case of Grutter.

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Oral Arguments


The Court’s Opinion



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Blog Topics

Harlan Institute Virtual Supreme Court - ConSource Badge

The Harlan Institute has partnered with ConSource to host our inaugural Virtual Supreme Court. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. Learn more about the Virtual Supreme Court. Learn more here.


Write the Opinion – Fisher v. University of Texas (200 Points)

Pretend you are the Justices of the Supreme Court. Vote as a class how this case should be decided, and write an opinion discussing how this case should be resolved. If your classmates do not all agree, write concurring and dissenting opinions to explore all of your different understandings of the case. Each opinion should be at least 250 words, and reference the text of the Fourteenth Amendment and at least three of the cases listed in the Relevant Precedents section.

Friend of the Court - Amicus Brief  Badge (150 points)

Imagine that you are the director of admissions at a public university. As director, it is extremely important to encourage diversity on campus, but you also want applicants from all racial backgrounds to be treated fairly. Further, you want to promote the notion that diversity is more than differences in race; it is valuable for students to interact with people from different religious affiliations, economic backgrounds, and sexual orientations as well. How should the Court rule in order to allow universities to continue promoting diversity in a way that is fair to all applicants? Write an amicus brief advising the Court on how their ruling would affect your university.

Standing to Sue - Constitutional Law Badge (50 points)

In order to have “standing” to sue in U.S. courts, the Constitution requires an individual like Abigail Fisher to show: (1) that she was injured by the person she’s suing, (2) that the defendant caused the injury, and that (3) if the court ruled for the plaintiff, her injury would be resolved (or in the lingo, “redressed”). All three factors — injury, causation, and redressability — must be found before a lawsuit can go forward. In reference to the first factor, courts have taken a broad view of what constitutes an injury, as long as the alleged harm is “concrete and particularized.”

After her rejection from the University of Texas, Abigail Fisher enrolled at Louisiana State University. She has confirmed that she does not attempt to apply to University of Texas at Austin again at any point in the future. Because she was able to pursue an undergraduate degree elsewhere, the University has argued that she did not suffer an injury in because of the University of Texas rejection.

Should it be sufficient that she was denied admission from the university to show injury? Would Fisher have a stronger case if she had not attended a university after her rejection from University of Texas at Austin?


Diversity or Discrimination - Civil Rights Badge (50 points)

In his opinion for Parents Involved in Community Schools v. Seattle, Chief Justice Roberts wrote: “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’”

Should the appropriateness of racial considerations depend on the context of the situation? For example: should racial profiling at an airport be treated differently than considering a candidate’s race in making a hiring decision? If there is a social justice argument for treating these situations differently, how should a judge consider these subjective concepts of fairness and justice? Consider these questions in a blog post of 200 – 300 words.

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Additional Resources

  • Full opinion of the U.S. Court of Appeals for the Fifth Circuit
  • Docket information at the Supreme Court:  This page will be updated as more briefs are filed.
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The Harlan Institute

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