Exhaustion of Administrative Remedies

Abigail Fisher applied for admission to the University of Texas in 2008. She did not qualify for automatic admission under the Top Ten Percent (TTP) plan. At that time, students admitted under TTP made up 81% of the freshman class. The University chose the remainder of the freshman class using a policy that considered race as one of many "plus factors." 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.

At the heart of the case 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 U.S. Supreme 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.

The federal district court for the Western District of Texas upheld the University’s plan on summary judgment, finding it consistent with the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger. The Fifth Circuit affirmed and Fisher sought review from the Supreme Court. TASB LAF joined NSBA, the College Board and 10 other amici in filing an amicus brief with the Supreme Court arguing that diversity is a compelling educational goal for secondary schools, that the limited consideration of race and ethnicity in admissions is an important tool in achieving that goal, and therefore it should be preserved in line with the Court's well-established, long-standing precedents.

The Supreme Court held that because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny, its decision affirming the district court’s grant of summary judgment to the University was incorrect. The Supreme Court vacated the Fifth Circuit’s decision and remanded the case for further proceedings. Because the decision did not reach the merits of the case, it does not affect diversity policies in K-12 schools, which are still governed by Supreme Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1. Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (Jun. 24, 2013). NSBA’s Attorney: C. Mitchell Brown, Nelson Mullins Riley & Scarborough, LLP, Columbia, SC.