U. S. Supreme Court To Hear University of Texas Affirmative Action Case

NEW YORK – Today, the United States Supreme Court granted certiorari in Abigail Noel Fisher v. University of Texas, a case challenging the constitutionality of UT’s reintroduction of racial preferences in the undergraduate admissions process in 2004.

In 2008, Abigail Fisher sued UT in federal court after she was denied admission, arguing that but for the fact she is Caucasian, she would have been admitted. Ms. Fisher lost her case at the U.S. District Court in Austin and at the Fifth Circuit Court of Appeals. She filed her appeal with the Supreme Court on September 15, 2011.

Last year, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit affirmed that UT Austin’s admissions plan is consistent with Grutter, which provided standard for colleges and universities to select student bodies throughout the nation. The NAACP Legal Defense Fund (LDF) has participated in the case as a friend-of-the-court and presented oral argument in the Fifth Circuit on behalf of the Black Student Alliance at UT Austin in support of the positions taken by the University.

“The benefits of diversity are unquestionable and as the Fifth Circuit recognized, UT Austin’s policy falls squarely within the four corners of the Supreme Court’s landmark 2003 decision in Grutter v. Bollinger. We trust that the Court will reaffirm that the educational benefits of diversity are a compelling interest that colleges and universities can and should pursue for the good of our students, our communities, and our nation.”

The Project on Fair Representation, which provides legal counsel to Ms. Fisher was pleased with the high court’s decision to hear the case. Edward Blum, Director of the Project said, “Abby Fisher and thousands of past applicants have been unfairly denied admission to UT based upon its unconstitutional use of racial preferences. It is deeply gratifying that the justices have agreed to hear this case.”

Blum added, “This case presents the Court with an opportunity to clarify the boundaries of race preferences in higher education or even reconsider whether race should be permitted at all under the Constitution’s guarantee of equal protection.”

At issue in Fisher is whether UT should have reintroduced racial and ethnic preferences after the U.S. Supreme Court’s ruling in Grutter v. Bollinger (2003). In Grutter (5-4), the high court wrote that a student’s race could be a factor in admission decisions in order to achieve a diverse student population.

However, the Grutter opinion highlighted that before a school resorts to racial preferences, it must first make a good faith effort to find a race-neutral means to achieve diversity. Fisher argues that UT had a race-neutral policy in place in 2003 that was extremely effective in achieving diversity, so the school’s reintroduction of racial preferences was unnecessary, thus unconstitutional.

Because of a 1997 ruling from the Fifth Circuit Court of Appeals in Hopwood v. Univ. of Texas , UT and all other private and public universities in Texas were forbidden from considering a student’s race or ethnicity in the admissions process. In response to Hopwood, the Texas legislature enacted a law requiring UT and all public universities to admit all Texas high school seniors ranking in the top ten percent of their classes. Shortly after its introduction, the Top Ten Percent Law had the effect of creating a significantly more diverse freshman class than did UT’s earlier affirmative action policies. By 2004, 21.4% of the entering class was African American and Hispanic, up from 15.3% in 1997. Lawyers for Ms. Fisher contend that the effectiveness of the Top Ten Percent law forecloses UT’s consideration of a student’s race or ethnicity.

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