Education | Educational Equity
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 and Grutter v. Bollinger 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.
, Salon (Dec. 11, 2015) “Extremely inappropriate”: The Supreme Court and the sneaky plot to kill affirmative action Ariane de Vogue,
, ABC 57 News (Dec. 11, 2015) Court releases audio of Justice Scalia saying maybe black students don't belong at elite universities Anemona Hartocollis,
, New York Times (Dec. 10, 2015) With Remarks in Affirmative Action Case, Scalia Steps Into ‘Mismatch’ Debate Anemona Hartocollis,
, The Seattle Times (Dec. 10, 2015) Justice Scalia adds fresh fuel to debate on affirmative action Tyler Cherry & Pam Vogel,
, Media Matters (Dec. 10, 2015) Media Explain The Importance Of Affirmative Action In College Admissions Ariane de Vogue,
, CNN (Dec. 9, 2015) Supreme Court divided in University of Texas affirmative action case Mark Sherman,
, The Daily Reporter (Dec. 9, 2015) Supreme Court revisits Texas college affirmative action in new court case Jim Schutze,
, Dallas Observer (Dec. 9, 2015) UT and Abigail Fisher Back Before the High Court today, Becoming a Regular Event Mark Sherman,
, WGEM (Dec. 9, 2015) Supreme Court hears Texas affirmative action challenge Elise Boddie,
, New York Times (Dec. 8, 2015) Why Supreme Court Justices Should Celebrate College Diversity, Not Reject It Richard D. Kahlenberg,
, The Atlantic (Dec. 8, 2015) The Future of Affirmative Action Kimberly Hefling,
, Politico (Dec. 8, 2015) In race case, will Justice Kennedy go from liberal hero to goat? Manny Otiko,
, Atlanta Blackstar (Dec. 7, 2015) Columbia University President Urges Supreme Court to Preserve Affirmative Action Tribune News Service,
, San Antonio Express-News, (Nov. 26, 2015) UT policy on admitting suburban minorities debated Carla Rivera, "
", LA Times, August 13, 2012 UC files court brief supporting race-based admissions policy Robert Barnes, "
", Washington Post, September 27, 2012 Supreme Court may limit use of race in college admissions Josh Civin, "
UT’s Race-Conscious Admissions Policy Promotes Individual Dignity for All Students ", ACSBlog, October 3, 2012 Samantha Robles
" , Huffington Post, October 9, 2012 UT Needs Holistic Review" Joshua Fechter, "
", The Daily Texan, October 13, 2012 Lawyers Tout Admissions Policy, Diversity on Campus Linda Greenhouse, "
", N.Y. Times, October 3 , 2012 History Lessons Marc Morial – President & CEO, National Urban League, "
", I Am Empowered, October 10, 2012 Supreme Court To Hear Major Affirmative Action Case Robert Post, Dean of Yale Law School, & Martha Minow, Dean of Harvard Law School, "
", Washington Post, October 5, 2012 Why Race Matters in School Admissions Jennifer Renee Johnson, University of Texas student, "
", N.Y. Times, October 6, 2012 Sunday Dialogue, Using Race in Admissions Elise Boddie, "'
", N.Y. Times, October 6, 2012 Sunday Dialogue, Using Race in Admissions' By Elise Boddie Steven Farmer, Vice Provost, University of North Carolina, "
", The Hill, October 8, 2012 Fisher v. Texas: It’s Wrong to Curb Diversity Cortney Sanders, University of Texas student, "
", Daily Texan, October 8, 2012 Op-Ed, Building a Campus that Includes Everyone Bill Mears, CNN Supreme Court Producer, "
", CNN Wire, October 8, 2012 Justices to re-examine use of race in college admissions Lee C. Bollinger and Claude M. Steele, "
", LA Times, October 9, 2012 A High-Stakes Battle for Higher Education Bobby R. Inman, Admiral, USN (ret.), "
",Time Magazine, October 9, 2012 Why Diversity Counts in National Security Rachel Godsil, "
", LA Times, October 9, 2012 Affirmative action and the unprepared minority myth Jared Dawson, University of Texas student, "
", The Horn, October 9, 2012 Another Face of Affirmative Action Bill Mears, "
", CNN, October 9, 2012 As high court hears affirmative action case, student voices differ on diversity Editorial, "
", Washington Post, October 9, 2012 Why the High Court Should Back Race-Based College Admissions Editorial, "
", USA Today, October 10, 2012 Keep Schools’ Right To Limited Use of Race Terry Baynes, "
", Reuters, October 10, 2012 Supreme Court Justices Challenge Affirmative Action at Universities Andrea Hsu, "‘
", NPR Blog, October 10, 2012 Sweatt Vs. Painter’: Nearly Forgotten, But Landmark Texas Integration Debo Adegbile, "
", Melissa Harris Perry Blog, October 10, 2012 Why Diversity In Higher Education Isn’t Optional Editorial, "
", NY Times, October 10, 2012 Race-Conscious Admissions in Texas Editorial, "
", Austin American- Statesman, October 10, 2012 A diverse student body benefits society Rep. Mike Honda, "
", Huffington Post, October 10, 2012 Don't Mess With Texas? How the Supreme Court Should Rule on Education Case Elise Boddie, "
", SCOTUS BLOG, October 11, 2012 Commentary on Fisher: The importance of diversity within diversity Toure, "
", TIME, October 12, 2012 Why We Still Need Affirmative Action Dan Christman and John F. Regni (former military academy superintendents), "
", San Antonio Express News, October 16, 2012 Military needs a diverse officer corps in a worldwide setting David Jesse, "
", Detroit Free Press, October 19, 2012 Affirmative action key to helping cities, former U-M official says Lena Martinez-Watts, "
", DIVERSE Issues in Higher Education, October 19, 2012 Knowledgeable Approach Can Take Stress Out of Affirmative Action Conversations Michael Kinsley, "
", Los Angeles Times, November 1, 2012 Overthinking Affirmative Action Richard Lempert, et al., "
", SCOTUS BLOG, November 5, 2012 All hat, no cattle? Mismatch and Fisher v. University of Texas at Austin Editorial, "
", New York Times, November 18, 2012 Class-Based v. Race-Based Admissions William Kidder
" , Los Angeles Review of Books, February 7, 2013 High Target for “Mismatch”: Bogus Arguments about Affirmative Action" Nikole Hannah-Jones, "
", PRO PUBLICA, March 18, 2013 A Colorblind Constitution: What Abigail Fisher’s Affirmative Action Case Is Really About William E. Kirwan, Chancellor, University System of Maryland, "
", The Chronicle of Higher Education, April 15, 2013 How We Can Be Better Stewards of the American Dream Damon Hewitt
" , the Cincinnati Herald, May 17, 2013 The Struggle Continues 59 Years After Brown v. Board of Education" Lee Bollinger
" , Slate, May 30, 2013 The Real Mismatch: The Supreme Court Should Not Force Universities To Trade Affirmative Action for Socioeconomic Diversity. Schools Can Have Both" Mark Walsh
" , Education Week, May 30, 2013 Theories Abound With Race-in-Admissions Ruling Still to Come. Education Week" Ronald Brownstein
" , National Journal, May 31, 2013 Why This Affirmative Action Debate Is Different" Lix Halloran
" , NPR, June 01, 2013 Court Prepares To Write New Chapters In Civil Rights History" Angela Onwuachi-Willig
" , National Law Journal, June 3, 2013 Clarence Thomas and Affirmative Action" Bill Mears
" , CNN.com, June 3, 2012 A summary of major upcoming Supreme Court decisions" Max Mihelich
" , Workforce, June 5, 2013 High Court Affirmative Action Case Could Have Workplace Implications" James M. Glaser and Timothy J. Ryan
" , Houston Chronicle, June 6, 2013 Preferences always will play a part in admissions: Colleges use myriad non-racial selections to balance classes" Dr. Gail Christopher
" , Huffington Post, Jun 6, 2013 The Conversation We're Not Having When We Talk About Affirmative Action"
, June, 2013 "Statement from Marc H. Morial, President and CEO of the National Urban League, Regarding the U.S. Supreme Court's Decision in Fisher v. University of Texas at Austin" Leo Higdon, Jr., President, Connecticut College, Op-Ed
" , Hartford Courant, June 7, 2013 Court Should Uphold Race Factor in College Admissions" Lincoln Caplan
" , N.Y. Times, June 11, 2013 The Effects of Race-Neutral Admissions" Linda Greenhouse
" , N.Y. Times Opinionator Blog, June 12, 2013 What’s Your Hurry?" Jamelle Bouie
" , American Prospect, June 13, 2013 Where Do Americans Stand on Affirmative Action?" Gene D. Block
" , June 24, 2013 Diversity on Campus Is Nearly Impossible Without Racial Preferences" The National Law Journal
" , June 24, 2013 Supreme Court Compromises in Affirmative Action Case" U.S. Secretary of Education Arne Duncan
" , June 24, 2013 Statement on the Supreme Court’s Ruling on Fisher v. University of Texas at Austin" Attorney General Eric Holder
" , June 24, 2013 Statement on the Supreme Court Decision in Fisher V. University of Texas" SCOTUSblog
" , June 24th, 2013 Commentary on Fisher: In with a bang, out with a fizzle" Molly Ball
" , The Atlantic, June 24, 2013 The Supreme Court’s Pleasant Surprise for Affirmative-Action Advocates" Libby Sander
" , Chronicle of Higher Ed, June 24, 2013 For U. of Texas Students, Ruling Brings Mix of Surprise and Relief" Stephanie Condon
" , CBS News, June 24, 2013 Supreme Court Holds Off on Major Affirmative Action Decision" Sherrilyn Ifill
" , June 24, 2013 Affirmative Action Ruling a Victory for Future" Journal Sentinel staff and Associated Press
" , Milwaukee Wisconsin Journal-Sentinel, June 24, 2013 In Texas case, high court backs 2003 affirmative action decision" Lee Bollinger
" , NY Times, June 25, 2013 A Long, Slow Drift from Racial Justice" Bill McKenzie
" , June 25, 2013 Fisher v. Texas: Why UT Should Still Be Able To Use Race As One of Several Factors" Joint Statement of Constitutional Law Scholars
" , June 25, 2013 Statement of Nation’s Leading Constitutional Law Scholars on U.S. Supreme Court’s Affirmative Action Ruling" Rachel Perlmutter
" , The Horn, June 26, 2013 One in a Sea of Fishers" Crystal Chambers
" , Diverse: Issues in Higher Education, June 26, 2013 Not the End of Affirmative Action as We Know It" Dennis Parker and Courtney Bowie
" , June 26, 2013 The Solution to Campus Diversity Problem Isn’t Segregation Everywhere Else" Chris Lewis
" , June 26, 2013 Affirmative Action is About More than Diversity" Damon T. Hewitt
" , The Root, June 26, 2013 Fisher Case: Fight for Diversity Not Over" Gay MacDougall
" , The Root, June 26, 2013 Affirmative Action's Modern Purpose " Sharon Davies, Executive Director,
" , Kirwan Institute for the Study of Race and Ethnicity June 26, 2013 Fisher and the Hidden Crisis of Black Male Collegians" College Board & Education Counsel, Access and Diversity Collaborative
"' , June 27, 2013 Decision Day' Key Questions" Lee C. Bollinger
" , The Chronicle of Higher Education, June 27, 2013 To Move Forward, We Must Look Back" Janell Ross "
", The Root, November 14, 2013 Landmark Affirmative Action Case in Court Again
The College Board " , June 24, 2013 The College Board Responds to the US Supreme Court’s Fisher v. University of Texas Decision" National School Boards Association
" , June 24, 2013 NSBA applauds Supreme Court’s school diversity ruling" American Council on Education
" , June 24, 2013 Statement of ACE President Molly Corbett Broad on Fisher v. University of Texas" University of Texas
" , June 24, 2013 University of Texas at Austin President Responds to Supreme Court Ruling" NASPA - Student Affairs Administrators in Higher Education
" , June 24, 2013 NASPA Reacts to Fisher Court Case Ruling" University of Wisconsin
" , June 24, 2013 Chancellor’s Statement on Fisher v. University of Texas at Austin" University of Indiana
" , June 24, 2013 IU President issues statement on Fisher v. University of Texas ruling" MIT
" , June 24, 2013 Letter to the community regarding Fisher v. University of Texas" Carleton College
" , June 24, 2013 Thiboutot Talks Fisher v. U of Texas Supreme Court Case Decision With MPR" University of Minnesota,
, June 24, 2013 Statement from U of M President Kaler on U.S. Supreme Court ruling in 'Fisher v. University of Texas'" Jill Anderson, Harvard Graduate School of Education
" , June 25, 2013 HGSE Reacts to Supreme Court’s “Fisher” Ruling" Kevin Kiley, Inside Higher Ed ,
" , June 26, 2013 The Day After, In Texas" Libby Sander
" , The Chronicle of Higher Education,June 27, 2013 For U. of Texas Students, Ruling Brings Mix of Surprise and Relief" College Board & Education Counsel
" , July 9, 2013 Understanding Fisher v. the University of Texas: Policy Implications of What the U.S. Supreme Court Did (and Didn't) Say About Diversity and the Use of Race and Ethnicity in College Admissions" Scholarly Articles
Civil Rights community, "
", LDF, October 5, 2012 Response to The Century Foundation’s Report on Affirmative Action in Higher Education Rachel Godsil, "
", Poverty & Race Vol. 21, No. 6 • PRRAC Journal, November/December 2012 View from the Gallery – Oral Argument in Fisher v. University of Texas–Austin William C. Kidder
" , 39 Journal of College and University Law 53, February 21, 2013 Misshaping the River: Proposition 209 and Lessons for the Fisher Case" Vinay Harpalani
" , University of Pa. Journal of Constitutional Law - Heightened Scrutiny, Vol. 15, No. 57, 2013 Fisher's Fishing Expedition" Gerald Torres
"Fisher v. University of Texas: Living in the Dwindling Shadow of LBJ’s America" , 65 Vand. L. Rev. En Banc 97 (2012) Girardeau A. Spann
"Fisher v. Grutter" , 65 Vand. L. Rev. En Banc 45 (2012) Audio/Video/Graphics Footage
PBS NewsHour, "
What's different about this challenge to affirmative action ?" December 9, 2015 The Last Word with Lawrence O'Donnell, "
Scalia's shocking Affirmative Action remarks " December 9, 2015 Melissa Harris-Perry,
Supreme Court to hear affirmative action case December 7, 2015 UP - with host Chris Hayes (MSNBC) "
The Supreme Court and Affirmative Action " September 30, 2012 NBC Nightly News "
High court hears biggest race case in six years " October 12, 2012 Martin Bashir (MSNBC) "
Supreme Court Hears Case on Affirmative Action (Romney, Ryan’s non-affirmative action on Supreme Court case) " October 10, 2012 CBS Evening News with Scott Pelley "
Family of UT trailblazer hope policy continues " October 10, 2012 CNN "
SCOTUS to Hear Affirmative Action Case " October 10, 2012
Audio of Oral Argument PBS NewsHour(PBS) "
Supreme Court Hears Affirmative Action Challenges " October 10, 2012 The Early Show (CBS) "
Grading Affirmative Action " October 10, 2012 Melissa Harris- Perry Show (MSNBC) "
An Open Letter to Justice Clarence Thomas " October 13, 2012 Melissa Harris- Perry Show (MSNBC) "
Why ending affirmative action makes America less secure " January 26, 2013 USA Today
"Supreme Court to make crucial rulings on race: From Brown to Fisher: Important civil rights cases and moments since 1954" N.Y. Times, Video:
"Big Supreme Court Issues: Same Sex Marriage, Affirmative Action and Voting Rights" , June 6, 2013 CBS News
"Supreme Court holds off on major affirmative action decision" , June 24, 2013 University of Texas at Austin
"Supreme Court returns Fisher case to Fifth Circuit Court of Appeals" , June 24, 2013 NY Times
"Interactive Graphic: In States with Affirmative Action Bans, How Minorities Have Fared" , June 24, 2013 Andrea Mitchell Reports (MSNBC)
"Supreme Court clears one major case from their to-do list" , June 24, 2013 All in with Chris Hayes
"Justice Thomas likens affirmative action support to slavery" , June 24, 2013 Democracy Now!
"In Affirmative Action Ruling, Supreme Court Upholds Importance of Diversity in College Admissions" , June 25, 2013