affirmative unsatisfaction

Home Constitutional

Affirmative Unsatisf’Action’

Affirmative Action

By: Kylee Berger

Research & Writing Editor, American Journal of Trial Advocacy

After eight years of litigation and a shocking remand from the United States Supreme Court (“SCOTUS”) back down to a Texas Federal District Trial Court, what might be the Country’s most anticipated affirmative action lawsuit, Fisher v. University of Texas at Austin (“Fisher II”),[1] has finally worked its way back up to SCOTUS. In 2008, Abigail Fisher was denied admission to the University of Texas at Austin (“UT”) after graduating within the top 12% of her high school class. She challenged the admissions decision and attacked the admissions process on the grounds that UT’s admissions policies are unconstitutionally race based and in violation of the Equal Protection Clause of the 14th Amendment.[2] In a straight forward Majority Opinion delivered by the infamous swing justice, Justice Anthony Kennedy, the Court details the unique historical background of the UT admission’s process to determine that after an evasive evolution, the process meets strict scrutiny analysis and is permissive under the constitution.

In 1996, UT based its admissions decisions off of an “Academic Index” (“AI”), which analyzed the applicant’s SAT score in conjunction with his/her high school academic grades.[3] After being sorted according to the AI, applicants of racial minority were given preference. In reviewing this process, the Fifth Circuit found this technique to be violative of the Equal Protection clause, forcing the University to espouse alternative processes.[4]

In response to the Hopwood v. Texas decision, the Texas Legislature adopted the Top Ten Percent Law, guaranteeing automatic admission to any public University in Texas to applicants who graduated within the top 10% of their high school class.[5] For the remainder of applicants at UT, a holistic review of each application was enforced. The University continued to evaluate each applicant’s AI, but each application was also evaluated for a Personal Achievement Index (PAI) score.[6] The PAI score was issued after an admissions panel considered the applicant’s personal essays, leadership and professional experience, extracurricular endeavors, and other “special characteristics,” that may define the unique background or upbringing of the applicant.[7] Race, however, was not a determinative factor.[8] It was not until SCOTUS decided two University of Michigan affirmative action cases, [9]  ultimately overturning Hopwood, that UT made the decision to add socioeconomic status of the applicant’s family, socioeconomic status of the applicant’s high school, familial responsibilities, marital status of the applicant’s parents, SAT scores in relation to high school peers, primary language, and race as “special characteristics” that may be considered when issuing a PAI score.[10]

After board approval, UT capped its Top Ten Percent applicants at 75% of the incoming class, allowing the final 25% of the incoming class to be evaluated using the holistic review system that allowed racial classification review.[11] This approach was similar to the University of Michigan’s admissions process deemed constitutional in Grutter v. Bollinger.[12] This final system was the system used by UT when evaluating Ms. Fisher’s application in 2008.

Because Ms. Fisher was not within the top 10% of her graduating high school class, her application was submitted to be reviewed under the holistic review process.[13] She asserted that the use of race in the admissions process hindered her, and other Caucasian applicants not automatically admitted via the Texas Top Ten Percent Law, and prevented their admittance to UT.[14] The Federal District Court entered Summary Judgment on behalf of the University, and the Fifth Circuit Court of Appeals subsequently affirmed.[15] After granting certiorari, SCOTUS remanded the case back to Federal District Court after determining that the lower courts “applied an overly deferential ‘good-faith’ standard in assessing the constitutionality of the University’s program.”[16] Although education has never been determined to be a fundamental right, race is constitutionally a suspect class, so the Court directed the lower courts to apply strict scrutiny to determine if the admissions program in place during Ms. Fisher’s review is narrowly tailored and necessary to achieve a substantial and constitutional governmental interest. After the same series of events unfolded in the lower courts, SCOTUS granted certiorari to review Ms. Fisher’s appeal de novo, using strict scrutiny analysis.[17]

From the outset of his analysis, Justice Kennedy alludes to the idea that the decision is factual in nature, and may not be sufficient precedent for affirmative action matters in the future.[18] He begins by expressing a sense of frustration with the extensive litigation in this matter as he asserts that “this case has been litigated on a somewhat artificial basis . . . limit[ing] its value for prospective guidance.”[19] However, he does assert that the type of data and the way in which the University has collected data will determine how other Universities develop their admissions programs to avoid future litigation.[20]

In his analysis, Kennedy first addresses the factual reality that a large part of UT’s admissions policy is circumscribed by the Texas Legislature, and without Ms. Fisher’s attempt to dispute the constitutionality of Texas’ Top Ten Percent Plan, the Court has no authority to determine the statute’s constitutionality. Furthermore, because the top 75% of applicants are not being disputed, there is a large piece of evidence that may define the true diverse nature of UT that is not being analyzed by the Court.[21] He explains that this evidentiary gap might warrant another remand for lack of sufficient evidence, but neglects to act on such a remand, as such “would do nothing more than prolong a suit that has already persisted for eight years and cost the parties on both sides significant resources.”[22] Instead, Kennedy takes the legislation as it is, and uses it as factual basis to determine that the quick Legislative response to Hopwood defines Texas’ good faith effort to comply with the Constitution.[23] He further notes that UT must continue to show that they have adapted to the narrowly tailored prong of strict scrutiny analysis when pursuing diversity and other core University values by ensuring that race plays as little role as possible in admitting students each year.[24]

The issue as defined by the Court is “whether, drawing all reasonable inferences in her favor, petitioner has shown by a preponderance of the evidence that she was denied equal treatment at the time her application was rejected.”[25] In attempting to successfully achieve her burden of proof, Ms. Fisher makes four arguments: 1) UT has not sufficiently defined its “compelling interest;”[26] 2) The consideration of race is unnecessary, as UT has already “achieved critical mass” in 2003 using the Top Ten Percent Plan and race-neutral holistic review;[27] 3) The consideration of race is unnecessary because of its limited impact on UT’s compelling interest;[28] 4) There are other viable means available to achieve UT’s compelling interest.[29] Relying heavily on the record of factual evidence, the Court did not find any of these arguments persuasive.

First, Ms. Fisher’s initial argument begs the question of what percentage or number of minority students the University intends to enroll each year. As the Court explains, precedent is clear in that racial quotas are violative of the Equal Protection Clause, and asking the University to define its compelling interest using a number would, in itself, be unconstitutional.[30] Instead, the Court has previously determined that diversity in a University level school “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.”[31] Furthermore, “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.”[32]        Although there is a compelling interest available that lies outside the realm of numbers, the University’s goals must be measurable by the Court in some way to efficiently meet strict scrutiny standards.[33] For this, Justice Kennedy looks to the record. Because of the “concrete and precise goals” laid out in a 2004 Proposal to Consider Race and Ethnicity in Admissions that was written after a year long study of race based and race neutral admissions policies, the Court found that UT had thoughtfully reviewed “the important decision . . . whether or not the use race in its admissions process.”[34] Ms. Fisher’s first argument had been successfully rebutted.

In refuting her second argument, Justice Kennedy concedes that the University bears the burden of proving that its compelling interest has not yet been achieved prior to the use of race based decision-making, but again looks to evidence in the record when ruling.[35] Months of studies and statistical and anecdotal evidence from 1996-2003 seem to sway Kennedy’s mind.[36] In addition to percentages of minority students enrolled during each admissions process stage pointing toward the necessity of race based admissions to achieve diversity, UT also showed a sense of “loneliness and isolation” that minority students experienced during the Hopwood era.[37] Again, though, the Court made it clear that Universities must continually adjust admissions policies to achieve their goals with the least amount of emphasis on race as possible.[38]

Thirdly, the Court quickly writes off Ms. Fisher’s third argument, that the consideration of race is unnecessary because of its “minimal impact” in advancing UT’s compelling interest, as a reason that the policies are, in fact narrowly tailored. Simply stated, because race consciousness is such a small consideration in admission, the use of race consciousness illustrates that use is narrowly tailored, not unconstitutional.[39]

Finally, the Court avidly opposes Ms. Fisher’s final argument, which seems to be her strongest argument throughout the entirety of litigation: “there are numerous other available race-neutral means of achieving” a compelling interest.[40] Ms. Fisher suggests that UT could have focused more on marketing the school to minority applicants, however the record showed numerous attempts at minority outreach as well as the creation of a new recruitment budget and scholarship programs for minorities.[41] Similarly, Ms. Fisher suggested that more weight be given to academic and socioeconomic background, but UT attempted this strategy when imploring race-neutral efforts after Hopwood.[42] Finally, Ms. Fisher suggested uncapping the Top Ten Percent Plan, but the Court looked through the facially neutral nature of the suggestion to determine that such a remedy would bypass the underlying purpose of enhancing minority enrolment.[43]

In concluding, Justice Kennedy discusses the popular suggestion that grades and class rank should be the only considerations when admitting students to college.[44] He explains that such a tactic would “sacrifice all other aspects of diversity in pursuit of enrolling a higher number of minority students.”[45] He sympathizes with those students who cherish extracurricular activities such as sports and music whose grades may be sub-par due to daily time spent on practice.[46] He takes comfort with the avid scientist who may not score well in humanities classes.[47] Finally he suggests that such a process would exclude the student whose family crisis kept her from performing well one semester, leaving her right outside the percentage cutoff.[48] The rationale of the Court is that “single metric” allows a school to miss out on certain people who may enhance the Universities environment, and “is in deep tension with the goal of educational diversity.”[49] Moreover, relying on a single metric incentivizes students to remain at lower performing schools and take less challenging classes.[50] Therefore, the University has deference in determining where the balance is found between legislative percentage plans and holistic review when achieving desired diversity.[51] However, “[t]he Court’s affirmance of the University’s admissions policy [] does not necessarily mean that the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”[52]


JUSTICE KAGAN recused herself.

JUSTICE THOMAS, dissenting.


[1] 579 U.S. ______ (2016) (“Fisher II”).

[2] Id. at *6.

[3] Id. at *1.

[4] Hopwood v. Texas, 78 F. 3d 932, 934-35, 948

[5] Tex. Educ. Code Ann. §51.803 (West Cum. Supp. 2015).

[6] Fisher II, supra note 1, at *2.

[7] Id.

[8] Id.

[9] See generally, Gratz v. Bollinger, 539 U.S. 244 (2003) (striking down the University’s admissions point system policy allowing additional points to be added to an applicant of racial minority); Grutter v. Bollinger, 539 U.S. 306 (2003) (allowing a policy that considered race as a factor of admission without assigning or eliminating additional points for racial status).

[10] Fisher II, supra note 1, at *2.

[11] Id. at *3.

[12] See 539 U.S. 306.

[13] Fisher II, supra note 1, at *6.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at *10.

[20] Id.

[21] Id.

[22] Id.

[23] Fisher II, supra note 1, at *10.

[24] Fisher II, supra note 1, at *11.

[25] Id.

[26] Id.

[27] Id. at *13.

[28] Id. at *15.

[29] Id. at *15-16.

[30] Id. at *11.

[31] Id. at *12 (quoting Grutter, 539 U.S., at 330).

[32] Id.

[33] Id.

[34] Fisher II, supra note 1, at *13 (quoting the record).

[35] Id. at *13-14.

[36] Id. at *14.

[37] Id. at *14-15.

[38] Id. at *15.

[39] Id.

[40] Id. at *15-16 (quoting Brief for Petitioner 47).

[41] Id. at *16.

[42] Id.

[43] Id. at *16-17.

[44] Fisher II, supra note 1, at *17.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id. at *18.

[51] Id. at *18-19.

[52] Id. at *19-20.

Be the first to comment on “Affirmative Unsatisf’Action’”

Leave a comment

Your email address will not be published.


Name *


Notify me of follow-up comments by email.

Notify me of new posts by email.