Affirmative Action

Affirmative Action


In Fisher v. University of Texas at Austin, Abigail Fisher asks the Court to either strike down UT’s admissions policy as inconsistent with the 2003 Grutter v. Bollinger ruling, or alternatively, to reconsider (and overrule) Grutter. At the heart of both cases is the question of whether and to what extent the Fourteenth Amendment’s guarantee of “equal protection of the laws” permits race to be used as a factor in efforts to achieve greater diversity in higher education. For more than three decades, the Court has said that although race may be one of numerous factors taken into account, it cannot be the predominant consideration in an admissions process.

Fisher, who is Caucasian, was a high school senior when she applied for admission to UT in 2008. She did not qualify for admission to the school under the Top Ten Percent (TTP) plan. In 2008, students admitted under the TTP made up 81% of the freshman class. Fisher was not awarded one of the remaining slots in the class, so she filed a lawsuit challenging the policies used by the university to fill those slots.

Both the Western District of Texas and the Fifth Circuit upheld the Texas plan, finding it consistent with the Supreme Court’s ruling in Grutter. The full Fifth Circuit voted 9-7 not to rehear the case en banc. But Chief Judge Edith Jones, joined by four colleagues, wrote a dissent, arguing that the three-judge panel that had upheld the plan had given too much deference to judgments made by UT. The U.S. Supreme Court granted the petition for a writ of certiorari on February 21, 2012 and heard oral arguments on October 10, 2012. LAF joined the College Board and the National School Boards Association as amici curiae to support UT and argue that the ability of educators to help students achieve excellence depends on many factors, including diversity among peers, and that the establishment of a sufficiently diverse learning environment is often essential to educational success. Fisher v. Univ. of Tex.at Austin, No. 11-345 (United States Supreme Court). LAF’s Attorney: C. Mitchell Brown, Nelson Mullins Riley & Scarborough, LLP, Columbia, SC.