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Harlan Institute » Fisher v. University of Texas Respondent Brief, Lake Oswego
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Fisher v. University of Texas Respondent Brief, Lake Oswego

March 4th, 2016

Abigail Fisher v. University of Texas at Austin

Kiara Green and Leah Krenek

Link to oral argument video:

Table of Cited Authorities

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

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

U.S. Department of Education laws & Guidance

for the Collection of Federal Education Data (August 2008)

University of Texas Statement on Equal Educational Opportunity

Parents Involved in Community Schools v. Seattle School District (2007)

Statement of Argument

The University of Texas at Austin’s race conscious admissions program is constitutional under the fourteenth amendment. The decision made in Grutter v. Bollinger allows higher education institutions to use race as a factor of admission as long as their use of it is “narrowly tailored” and they have “compelling interest.” Following the reasoning of Regents of the University of California v. Bakke, UT Austin can use race in their admissions process because they are trying to promote diversity within the student body. In addition, the University’s practice of asking a student’s race in their application is required for federal eligibility and accountability reports. Abigail Fisher was not required to answer this question, but she choose to. More importantly, Abigail Fisher does not have any proof that minority students were admitted solely on the basis of their race, and she was denied because she was caucasian.


  1. The University of Texas at Austin is allowed to use race in considering applicants based on the decision in Grutter v. Bollinger.                                                              The case of Grutter v. Bollinger allows higher level education institutions to consider race as a factor of admissions as long as they have a “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,” said Justice Sandra Day O’Connor, who wrote for the majority. The University of Texas at Austin’s diversity statement says, “we embrace and encourage diversity in many forms, striving to create an inclusive community that fosters an open and supportive learning, teaching and working environment.” The university is creating a diverse student body in order to promote a stronger and more well-rounded campus. They have compelling interest to obtain a critical mass, as well as a narrowly tailored system.

  1. The University of Texas at Austin is not using a quota system and therefore can consider race.                                                                                                                   The top ten percent rule is a way to achieve a holistic critical mass by taking into account a student’s ranking in high school rather than their race. This system only looks at the student’s grade point average, not the color of their skin. If the University was using a quota method to obtain a critical mass, similar to the one used in the Regents of the University of California v. Bakke, then the school would be in violation of the equal protection clause. But the University of Texas at Austin does not  have a specific number of minorities they accept, nor do they reserve application spots for minorities. They are choosing to automatically admit the top ten percent of high school students in Texas. This system functions to represent students throughout the state and increase regional diversity by accepting a quantity of students from each high school. In Bakke, the use of a quota system where spots are reserved for minorities was declared unconstitutional. But the court also said that the school could still use race in consideration for admission since they had “compelling interest in encouraging diversity in its student body.” The University of Texas is following this precedent and is using race as one of the many factors they consider; a practice which is constitutional.

  1. Answering questions regarding race on a college application is not required.   Abigail Fisher chose to answer the question on UT’s application regarding her race. She was not forced to respond. When reviewing the application, questions about your name and date of birth are required, and are denoted with a small red star. However, the question asking the applicants’ race does not display a red star, and therefore is not required. Fisher volunteered information about her race, thus making it known to the University . Questions regarding race on college applications are required for federal eligibility and accountability reports. According to the U.S. Department of Education, these regulations were revised in 2007, allowing students to choose multiple ethnicities, making them feel less limited. The U.S. Department of Education says “As a general matter, while educational institutions and other recipients are required to comply with this guidance, individuals are not required to self-identify their race or ethnicity.” This makes it very clear that answering race and/or ethnicity questions are optional. If Fisher had chose to leave the question blank and not identified her race, then she likely would not feel that racial discrimination was the reason for her denial. The University of Texas did not place a question regarding race on their application to deter or discriminate against races, they simply are complying with regulations in order to gain crucial information to improve their diverse student body.

  1. Fisher is arguing that it is unfair that her fellow peers were accepted and she was denied, even though each individual circumstance and acceptance is unique.

The goal of the University of Texas is to be representative of a broad range of perspectives by having a diverse student body. In order to do so, each individual is looked at and judged on a case by case basis. Abigail Fisher, however, believed that because the color of her peer’s skin differed from her own, that alone gave her reason to infer that race was the sole factor in determining her acceptance. It is impossible to directly compare identical circumstances because each individual is unique. Taking this into consideration, the University of Texas has come up with a system to look at various components of an applicant’s background. Each student is looked at and given a point score based on their grades, background, and involvement to ensure a fair judgment is given. Ms. Fisher is wrongly accusing the University of Texas of breaking federal law. The school is not discriminating on the basis of race, it is simply using race as one of the many factors that dictates if an applicant is qualified to be admitted. The University is taking a holistic approach to better promote diversity in their school. Additionally, the point system in place allows everyone to be equally judged on the same scale which does not violate the 14th amendment, but rather supports it in its entirety.

V. Affirmative action in College admissions is completely constitutional as long as it pases the strict scrutiny test.

The strict scrutiny test allows policies to be tested to ensure they are compliant with the equal protection clause of the fourteenth amendment. Disputes regarding race are suspect classifications and are always examined under strict scrutiny. To declare a system constitutional and pass the test, the state must prove that there is a compelling state interest to satisfy the reasoning behind such a policy, and that the program is narrowly tailored to avoid discrimination. In the case of Fisher v. University of Texas, the school has shown complete compliance with these regulations and therefore should be granted the right to continue on with such practices. The University finds it exceptionally compelling to support the notion of diversity in higher education. It is for this reason that the school implemented the top 10% rule to increase admittance from all high schools and comprise a student body made up of the highest achieving students from various areas around Texas. The school takes a holistic approach to the acceptance of students who do not fall under this category. They look at a variety of factors, race being one of them, and make a decision as to whether or not an applicant is fit for admittance. Race is one of the many factors that is taken into account which means the precedent set by Parents Involved in Community Schools v. Seattle School District does not apply. In this case, affirmative action was struck as race was the sole factor in determining admittance and was not “narrowly tailored” enough. At UT Austin, race is looked at in accordance to other factors such as test scores, gpa, and involvement. Therefore, the school does indeed pass the strict scrutiny test allowing them to use race as one of the many components they look at to decide admittance to achieve a diverse “critical mass”.


UT Austin has stated that they are  “committed to an educational and working environment that provides equal opportunity to all members of the university community”. They fulfill this statement by conducting automatic admission of the top 10% of each class of High School students from Texas. Additionally, admittance to the college is narrowly tailored as seen in the fair point system administered to each applicant. Both of these mechanisms for admittance are consistent with the 14th amendment, and are beneficial in order to achieve a critical mass of diverse students. Abigail Fisher’s rights were never infringed upon, she simply could not meet the standards set to be admitted. For reasons stated above, the existing standard should be affirmed as the University of Texas has complied with all guidelines and has promoted a diverse student body with equal opportunity for all applicants. Affirmative action laws were written to supersede equal rights laws. The school has applied the affirmative action laws to its policy of selecting students keeping race in mind, and this overrides the perceived “discrimination” for the school to give minority treatment.