Fisher v. UT Austin is the first federal litigation challenging the use of race in university admissions since the Supreme Court’s 2003 decision in Grutter v. Bollingerwhich upheld an admissions policy at the University of Michigan Law School and broadly affirmed the educational importance of diversity.
On August 13, 2012 the NAACP Legal Defense and Educational Fund, Inc. (“LDF”) filed an amicus curiae (“friend of the court”) brief in Fisher v. University of Texas at Austin, urging the U.S. Supreme Court to preserve diversity and opportunity in America’s colleges and universities.
UT’s consideration of race in admissions is exceedingly modest, even more so than the law school admissions policy at issue in Grutter. But the impact of the race-conscious component of the policy is meaningful. After UT added consideration of race into its individualized admissions policy beginning in 2005, African-Americans enrollment grew by over 21 percent.
The admissions policy at issue in Fisher has two components: Most students are admitted under a state law (the “Top Ten Percent Plan”), which requires the University of Texas at Austin to admit 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 is now at issue in the Supreme Court.
LDF has played a key role in Fisher, filing briefs at every stage of the litigation and presenting oral argument in the court of appeals in support of the diversity policy adopted by UT. On April 13, 2009, the NAACP Legal Defense Fund (LDF) filed a friend of court brief in the district court in Texas. LDF’s friend of the court brief was filed on behalf of the Black Student Alliance at UT Austin. The brief emphasized the limited enrollment of, and isolation experienced by, African-American and other students of color in the eight-year period before UT Austin reinstituted race as a factor in admissions for the 2005 entering class. As a consequence, LDF argued, all students were deprived of the educational benefits of diversity.
The Supreme Court’s conceptualization of the educational benefits of diversity dates back to a former LDF case, Sweatt v. Painter. In 1950, the U.S. Supreme Court in Sweattordered 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. 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. Sweatt’s daughter and other family members also filed a brief supporting UT.
The suit against the University of Texas was filed in 2008 by two white students who were denied entry into UT Austin. Most students are admitted to UT Austin under the Top Ten Percent Plan, which guarantees admission to all Texas students in the top ten percent of their high school class. The remaining students are admitted under a holistic admissions process that considers race as one of many factors in a student’s application file.