Spring 2015

Affirmative Action

The LAF Board originally approved a request to participate in this case on July 18, 2012.

In Fisher v. University of Texas at Austin, Abigail Fisher asked 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.

LAF, along with NSBA, the College Board and 10 other amici filed an amicus brief with the U.S. Supreme Court on August 13, 2012.  On June 24, 2013, the U.S. Supreme Court held that the Fifth Circuit should have used strict scrutiny to analyze UT’s policy.  The Fifth Circuit’s decision was vacated and the case was remanded for further proceedings.  On July 15, 2014, the Fifth Circuit, applying strict scrutiny, again upheld UT’s admission policy.

Fisher filed a petition for writ of certiorari to the U.S. Supreme Court in February 2015, which the court granted.  The case will be considered by the Court in its October 2015 term. Fisher v. Univ. of Tex. at Austin, No. 14-981 (United States Supreme Court).