TXEXplainer: Five Things To Know About Fisher v. Texas

By Andrew Roush in Promote & Protect, Special on October 10, 2012 at 8:00 am | 11 Comments

The University of Texas at Austin is in the spotlight regarding the use of race in admissions. We’ve compiled five things every Longhorn should know about UT-Austin and the high-profile Supreme Court case.

Update, 2:15 p.m.: You can read a transcript of this morning’s oral arguments here, and a recap from the SCOTUSblog here.

1) The Facts of the Case. In 2008, Abigail Fisher graduated from Stephen F. Austin High School in Sugar Land. Because she graduated outside the top 10 percent of her class, her application to UT-Austin underwent a process the University calls “holistic review,” in which a number of factors–including race—are taken into account. Fisher was denied admission and sued the University, claiming a violation of the 14th Amendment’s equal-protection clause. In essence, Ms. Fisher is claiming that she was denied admission to UT-Austin because of her race.

2) This is the latest in the long (and somewhat confusing) line of race-based admission cases. And it may not be the last. The question of using race as an admission criterion has been debated since before desegregation. In 1950, a Texas court decided against Heman Sweatt, a black student seeking admission to UT Law, only to have the decision overturned by the U.S. Supreme Court later that year. In the 1978 Regents of the University of California v. Bakke decision, the U.S. Supreme Court ruled that race could be used to create diversity, but not to address historical injustice. The Fifth Circuit Court of Appeals ruled in 1996’s Hopwood v. Texas case that affirmative action for the sake of diversity is unconstitutional. Hopwood was itself overturned in 2003 with the Supreme Court’s Grutter v. Bollinger and Gratz v. Bollinger decisions, which upheld affirmative action as one of many factors to create diversity, as long as a point or quota system was not used. This is the basis of UT-Austin’s current admissions system.

3) UT-Austin uses race in admissions, but it’s not quite that simple. The fraught legal history of admissions is irrelevant to most UT-Austin students. For most students, admission boils down to a simple question: were you in the top 10 percent of your graduating class? Three-quarters of incoming freshman are admitted under the top 10 percent law. The remaining quarter undergoes holistic review, a process the New York Times calls a “mystery.” While the criteria used are well documented, the question of who benefits from holistic review is fuzzier. Seeming to counter Ms. Fisher’s assertion, a smaller percentage of minority students are admitted under holistic review, the only part of UT-Austin’s “blended” admissions that takes race into account.

4) The debate over affirmative action is still very much alive. There are, without a doubt, pure legal challenges in the Fisher case (i.e. Would Ms. Fisher have been admitted if race weren’t considered? Did she suffer any injury that even justifies a lawsuit?). What has made this case so talked-about, however, are the broad moral questions raised by the consideration of affirmative action. A huge number of groups have weighed in on both sides, including dozens who filed amicus briefs (legal notes supporting either side). The majority of these briefs have been in support of UT-Austin, including by the family of Heman* Sweatt. UT-Austin alumnus Kenneth Jastrow and UT Law professor Lino A. Graglia provide a good starting place to understand both sides of the debate.

5) What happens if Fisher wins. UT-Austin loses control over whom it admits. Senate Bill 175, the same bill that put the 75 percent cap on admissions under the top 10 percent law, also includes a trigger clause that states if holistic review is overturned by, say, the Supreme court, the cap also goes away. Without a cap, the University will be legally required to admit top 10 percent students until the freshman class is full, meaning the entire class. It remains to be seen whether the 83rd Texas Legislature, elected next month and starting in January, will plan for this option. Whether they’re ready or not, the Fisher decision is expected next spring.

To dig deeper, check out Jeffrey Toobin’s piece in The New Yorker, and the extensive coverage in the Daily Texan, the Texas Tribune and the SCOTUSblog.

Photo by Mark Fischer on Flickr.

Tags: Abigail Fisher, Bakke, battle over UT-Austin, college admissions, Fisher v. University of Texas at Austin, Gratz v. Bollinger, Grutter v. Bollinger, holistic review, Hopwood v. Texas, race-based admissions, SB 175, Sweatt v. Painter, texas legislature, top 10 percent, TXEXplainer, U.S. Supreme Court