On December 9, 2015, the Supreme Court will hear oral argument in Fisher v. University of Texas (Fisher II) and will, for the second time, review the constitutionality of the consideration of race in the University of Texas (“UT”) undergraduate admissions policy. Previously, in June 2013, the Court upheld, in Fisher I, the landmark decisions of Grutter v. Bollingerand Regents of the University of California v. Bakke, which broadly affirmed the educational importance of diversity, and remanded the case to the Fifth Circuit for further review consistent with those decisions’ requirement of strict scrutiny review.
The U.S. Court of Appeals for the Fifth Circuit upheld UT’s admissions policy in 2011 and it did so again in 2014 on remand from the U.S. Supreme Court. The admissions policy at issue in Fisher has two components: UT admits all Texas residents who rank in the top ten percent of their high school class. For the remainder of the class, UT undertakes a holistic “whole-file” review of applications. This process allows the school to consider additional criteria, such as essays, leadership qualities, extracurricular activities, awards, work experience, community service, family responsibilities, socio-economic status, languages spoken in the home, and—as of 2005—race. It is this modest consideration of race alongside a host of other factors that was and is again under review. In July 2014, finding the holistic review component of the admissions process a modest but important complement to the Top Ten percent component of UT’s admissions program, the Fifth Circuit found that UT’s program was indeed narrowly tailored to advance the compelling government interest in the educational benefits of diversity.
LDF has long played a key role in the litigation of this case, filing an amicus brief before the U.S. Supreme Court in 2013 and twice presenting oral arguments in the U.S. Court of Appeals for the Fifth Circuit. Most recently, LDF filed a friend of the court brief on behalf of the Black Student Alliance (BSA) and the Black Ex-Student Alliance (BEST) in November 2015. The brief emphasized the continued importance of race-conscious admissions in admitting a diverse class and preparing UT students and America’s future leaders. The brief also highlighted the critical role of diversity in breaking down stereotypes and of the UT program to achieving that end. LDF’s latest amicus brief asserts that “[w]hen students encounter classmates from different backgrounds—within and across dimensions of race, socio-economic status, and beyond—and come to understand and respect each other as individuals, they are all better for it.”
UT’s program comes under scrutiny against a historical backdrop of exclusion of African-American students from UT, as well as the prohibition of consideration of race in admissions at UT. In 1950, the U.S. Supreme Court in Sweatt v. Painter ordered UT’s Law School to admit an African-American candidate, Heman Marion Sweatt. Although Sweatt was academically qualified, he had been denied admission based solely on his race. More recently, in Hopwood v. Texas, UT was prohibited from considering race in admissions. As a result of Hopwood, UT admitted students through a program much like the present-day hybrid plan, only the holistic review supplementing the Top Ten plan considered all characteristics except for race. Between 1997 and 2004 – between Hopwood and Grutter – UT’s African-American and Latino student population plummeted and diversity faltered. This history, combined with the need to improve the racial climate on campus, elevated the particular importance and educational benefits of promoting student diversity at UT and bolstered the case for UT’s eventual return to race-conscious admissions. Since 2004, UT has used the hybrid admissions plan in an effort to improve diversity on campus.
A broad and varied coalition joins LDF in support of UT in Fisher II, including: scores of Fortune 100 companies and leading American businesses; a group of retired military leaders; the U.S. Solicitor General; 18 states; dozens of Texas legislators; numerous universities, colleges, and educational associations; and more than 800 social scientists. This broad coalition also includes dozens of national civil rights organizations, including Asian Americans Advancing Justice, the Mexican American Legal Defense Fund, and Gay & Lesbian Advocates & Defenders.