Fisher v. University of Texas (2013, 2016)

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Fisher II
Opinion
Citation: 579 U.S.   2016
Court: United States Supreme Court

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Issue

Whether race-conscious, affirmative-action admissions programs at colleges and universities are in conflict with the Equal Protection Clause.

Facts

Plaintiff Abigail Fisher applied to the University of Texas at Austin in 2008 but was denied. She is white. The university’s admissions program considered race in their evaluations for acceptance, and Fisher filed suit claiming the university discriminated against her in violation of the Equal Protection Clause of the 14th Amendment. Under this clause, states are prohibited from denying any person within their jurisdiction the equal protection of the laws.

Fisher graduated from high school in the top 12% of her class. She scored 1180 on her SAT test, placing her well-within the range of those accepted into the incoming freshmen class of the University of Texas. She was involved with orchestra, math competitions, and volunteer work for Habitat for Humanity.

Under state law the university offered admission to students from the top 10% of any Texas high school’s graduating class, regardless of race. Known as the Ten Percent Plan, this constituted about 75% of the incoming class. Fisher fell just outside of this category, and so the college considered her for the remaining 25% of the incoming freshman class.

Second-tier admissions considerations such as hers were based on two categories: the first was academically based, and the second included “special circumstances.” Those “circumstances” included the applicant’s socioeconomic status, spoken language, and race. The university argued that giving weight to the applicant’s race was added to admissions criteria to increase diversity, even though the first-tier Ten Percent Plan for admissions was also aimed at increasing diversity among the student body by drawing students from minority-heavy school districts.

The Court Below

In 2009 Fisher filed suit with the U. S. District Court for the Western District of Texas. The court issued a summary judgment upholding the university’s admissions policy, finding that it met the standards of Grutter v. Bollinger, 539 U.S. 306 2003, which had upheld the affirmative action admissions program of the University of Michigan Law School. In this case, the law school’s “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause.”

Fisher v. University of Texas, 645 F.Supp.2d 587 W.D. Tex. 2009

Fisher appealed to the Fifth Circuit Court of Appeals, which affirmed the decision, upholding the university’s policy.

Fisher v. University of Texas, 631 F.3d 213 5th Cir. 2011

Fisher then appealed to the Supreme Court in what came to be known as Fisher I, which vacated and remanded the judgment, ruling that the Fifth Circuit “did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and [Regents of the University of California v. Bakke, 438 U.S. 265 1978] … But fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis.”

Fisher v. University of Texas, 570 U.S.   2013

The Supreme Court sent the case back to the lower courts for reconsideration.

The Fifth Circuit again heard the case and again upheld the university’s policy, ostensibly in accordance with the Supreme Court’s requirement for a more appropriate strict scrutiny standard.

Fisher v. University of Texas, No. 09-50822 5th Cir. 2014

Fisher again appealed the case to the Supreme Court, which agreed to hear the case a second time in Fisher II.

Fisher v. University of Texas, 579 U.S.   2016

Question Before the Supreme Court Fisher I:

“Whether this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 2003, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions[?]”

Question Before the Supreme Court Fisher II:

“Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin, 133 S. Ct. 2411 2013[?]”

CCJ filed a joint amici curiae in Fisher I 2013, and then filed a second, independent amicus curiae for Fisher II 2016.

Summary of CCJ joint amici curiae on writ of certiorari in Fisher I 2013:

In Grutter v. Bollinger 2003, the doctrine of strict scrutiny is traditionally aimed at helping to create race-neutral policies in legislatures, city councils, administrative agencies, college campuses, and in the courts. It is designed to place the burden on the legislature to provide a compelling governmental interest for applying policies touching on “suspect classifications,” such as race. The Court had consistently held to this standard, and indeed, most Americans have consistently found the goal of diversity in race-preferential admissions policies in colleges ultimately unconvincing. But in Grutter, the Court held that the goal of diversity was not only convincing, but also compelling. The Court thus sanctioned racial discrimination in the college admissions process, abandoning race neutrality and hence the doctrine of strict scrutiny.

Race should have weight in laws and policies only when such policies would be commonsensical or uncontroversial. For example, a policy of temporarily separating federal prison inmates by race during a race riot to restore order and prevent injury is clearly a race-based policy with a compelling governmental interest. But a policy of admitting college applicants by race to promote diversity is far less compelling. Indeed, rather than putting to rest racial policy controversies, the Grutter decision creates more racially sensitive legal issues by allowing for more race-based policies in colleges, from financial aid to segregated dormitories, which will increase the number of lawsuits or simply facilitate widespread discrimination on people who lack the resources to mount litigation. Unconstitutional racial discrimination has thus sunk its roots deeply into higher education.

Summary of CCJ amicus curiae on petition for writ of certiorari in Fisher II 2016:

The Supreme Court should reconsider Grutter v. Bollinger 2003, having erroneously held that the Equal Protection Clause does not prohibit the use of race in college admissions to obtain a diverse student body. Classifying Americans by race is fundamentally at odds with the equality principle of the Declaration of Independence underlying the Constitution.  

The Fifth Circuit essentially rewrote the policy of strict scrutiny after the Supreme Court remanded Fisher I, without explaining its new approach, which justifies a review by the Court. The lower court’s redefinition creates confusion and requires the Supreme Court’s intervention to confirm whether this new standard is to be used in future cases.

“All men are created equal” is the fundamental creed of the United States. Indeed, it was codified in state constitutions, including in Virginia’s Declaration of Rights, which held that “all men are by nature equally free and independent.” This meant all human beings, of both sexes and of all races. Even Founders who owned slaves recognized that slavery was inconsistent with the equality doctrine of the Declaration of Independence.

The eradication of slavery and the institution of the Equal Protection doctrine of the 14th Amendment promised legal equality for all. Despite the Court’s misapplication of this principle in the form of the “separate but equal” doctrine in Plessy v. Ferguson 1896, Justice John Marshall Harlan’s dissent in that case foretold the end of segregation and a full realization of the principles of the Declaration of Independence.

“Our Constitution is color-blind,” as he put it simply.

This principle of color-blindness was recognized in Brown v. Board of Education 1954, as then-attorney Thurgood Marshall argued: “When the distinctions imposed are based upon race and color alone, the state’s action is patently the epitome of that arbitrariness and capriciousness constitutionally impermissive under our system of government.”

Defenders of racially discriminatory laws today exhibit the same determination to avoid the commands of the Equal Protection doctrine as their predecessors in the 1950s. Rationalizing policies of racial discrimination based on diversity should be no more permissible than the sordid reliance on Plessy v. Ferguson to rationalize segregation on a “separate but equal” doctrine. The time to stop treating individuals based on their skin color is long overdue. Only by insisting, as the post-Brown Court did, that racial discrimination is no longer tolerable, can this Court end racial classifications in the law once and for all.

After hearing Fisher I, the Supreme Court ordered the Fifth Circuit to rehear the case and apply strict scrutiny to the university’s admissions policy. The Fifth Circuit failed to do so, instead taking a radical departure from the traditional analysis, finding a new reason for the adoption of racial classifications. Its new analysis was more akin to rational basis review, whereby the law or policy needs only to be “rationally related” to a “legitimate government interest,” whether real or hypothetical.

The two-tier policy the university adopted in 2004 reads explicitly that its purpose was to quantitatively increase the number of minority students in the classroom to reach a “critical mass” for an increase in racial diversity. The university’s report on the policy emphasized the need for “classroom contact with peers of differing racial, ethnic, and cultural backgrounds.” It is the same policy at issue in all of these cases.

Upon remand following the Court’s holding that traditional strict scrutiny must be applied Fisher I, the university changed the justification for its two-tier policy by claiming a “qualitative” goal: that the Ten Percent Plan for the first 75% admits too many minorities from minority-heavy districts that have low academic credentials, and so a “holistic” approach for second-tier 25% students was needed to ensure that the university selects the right minority students. Again, the plan itself is the same as before.

Whatever the merits of the university’s new argument upon remand, its case before the court below was now premised on an entirely new justification for its race-based admission process. The Fifth Circuit permitted this shift in argument, also allowing the university to use evidence outside the record to support the new claim. This is a radical change in the way strict scrutiny had been applied in other cases.

The change in argument and the Fifth Circuit’s allowance of it falls in line with lower-scrutiny rational basis review, rather than strict scrutiny, because rational basis requires the legislature to show merely any justification or conceivable basis for the law or policy, without needing to articulate a reason. This change in review shifts the burden from the university, who under traditional strict scrutiny would have to show that the law was compelling and narrowly tailored, to Fisher, who then had the burden to negate every possible justification for the policy.

The Supreme Court should review this newly minted version of strict scrutiny to settle whether it is to be the norm when federal courts review presumptively unconstitutional state laws.

CCJ Founding Director Dr. John Eastman was also the counsel of record for the California Association of Scholars amicus curiae.

Final Outcome

The Court essentially rejected CCJ’s arguments, ultimately upholding the Fifth Circuit’s application of strict scrutiny. The University of Texas kept race considerations in its admissions policy.