Fisher v. University of Texas and the Status of Affirmative Action
| Date | 01 March 2017 |
| Published date | 01 March 2017 |
| DOI | 10.1177/0734371X15608420 |
| Subject Matter | Articles |
research-article2016
Article
Review of Public Personnel Administration
2017, Vol. 37(1) 23 –39
Fisher v. University of Texas
© The Author(s) 2016
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DOI: 10.1177/0734371X15608420
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Action: Implications for
Social Equity
Norma M. Riccucci1
Abstract
In June of 2013, the U.S. Supreme Court issued a ruling in Fisher v. University of Texas
that threatened the continued use of affirmative action to promote diversity in
university admissions. It vacated the decision of the U.S. Court of Appeals for the
Fifth Circuit, which upheld its use, and remanded the case back to the appellate court.
This legal brief examines the implications of the Fifth Circuit’s decision on remand. It
examines the appellate court’s response to the High Court on remand, where it once
again upheld the affirmative action program at the University of Texas.
Keywords
affirmative action and equal employment opportunity, discrimination, diversity, legal/
constitutional issues, recruitment and selection
The importance of diversity in educational institutions has far-reaching consequences
for social equity1 in public and private employment, economic well-being, civic
engagement, and the overall full enfranchisement of all Americans. It is fundamental
to the fulfillment of democratic principles (Gooden, 2014; Gooden & Portillo, 2011).
In June of 2013, the U.S. Supreme Court issued a ruling in Fisher v. University of
Texas that threatened the continued use of affirmative action to promote diversity in
university admissions. It vacated the decision of the U.S. Court of Appeals for the
Fifth Circuit, which upheld its use, and remanded the case back to the appellate court.
The High Court stated that the appeals court had paid undue deference to the University
1Rutgers University–Newark, NJ, USA
Corresponding Author:
Norma M. Riccucci, School of Public Affairs and Administration, Rutgers University–Newark,
111 Washington Street, Newark, NJ 07102, USA.
Email: riccucci@rutgers.edu
24
Review of Public Personnel Administration 37(1)
with regard to whether its affirmative action policy met the Fourteenth Amendment
requirements for “narrow tailoring.”
This legal brief examines the implications of the Fifth Circuit’s decision on remand.
It begins with a review of early decisions on affirmative action as well as a review of
the U.S. Supreme Court’s ruling in Fisher. It then examines the appellate court’s
response to the High Court on remand; it upheld the affirmative action program at the
University of Texas (UT). Interestingly enough, however, and while this article was in
press, the High Court agreed once again to review Fisher. The possible outcomes of
this decision will be addressed in the concluding section.
The Court’s Grutter Decision
In 2003, the U.S. Supreme Court upheld the use of affirmative action in university
admissions in Grutter v. Bollinger. Briefly, that case involved a challenge under the
Fourteenth Amendment’s Equal Protection Clause2 to the use of race in admissions
at the University of Michigan’s Law School. Race was one factor among many,
including LSAT scores and grade point averages (GPAs). Each applicant was con-
sidered individually, and although the Law School did not seek to admit a specific
percentage of students of color, it did seek to enroll “a ‘critical mass’ of underrepre-
sented minority students . . . to ensure their ability to contribute to the Law School’s
character and to the legal profession” (Grutter, 2003, p. 306). As it had in previous
cases, the Court applied the strict-scrutiny test—or means-to-ends analysis—to
determine the constitutionality of the School’s affirmative action program. The first
prong of this test asks whether there is a compelling state interest in the program
(i.e., the goal or end); the second prong asks whether the program is sufficiently nar-
rowly tailored to meet its goal (i.e., are there alternative means to reach the goal
without taking race into account).
Drawing on the Court’s 1978 Regents of the University of California v. Bakke deci-
sion which supported the principle of affirmative action in admissions, the Grutter
Court pointed to the significance of diversity, including seeking a critical mass of
students of color, in university settings as a compelling government interest. The
Grutter Court argued that there are several educational goals served by a diverse stu-
dent body. Writing for the Court’s 5-4 majority, Justice Sandra Day O’Connor (2003)
stated that “classroom discussion is livelier, more spirited, and simply more enlighten-
ing and interesting when the students have the greatest possible variety of backgrounds
. . . student body diversity promotes learning outcomes” (Bakke, 1978, p. 330). Thus,
the first prong of the strict-scrutiny test was cleared.
The Court further found that the admissions program met the second prong of the
strict-scrutiny test because race was but one factor among many in the Law School’s
admissions criteria. It opined that
the Law School engages in a highly individualized, holistic review of each applicant’s
file, giving serious consideration to all the ways an applicant might contribute to a diverse
educational environment. The Law School affords this individualized consideration to
Riccucci
25
applicants of all races. There is no policy, either de jure or de facto, of automatic
acceptance or rejection based on any single ‘soft’ variable (Grutter, 2003, p. 309).3
Importantly, the Grutter Court did not ask for a numerical definition of critical
mass. The Court argued that “the Law School defines its critical mass concept by ref-
erence to the substantial, important, and laudable educational benefits that diversity is
designed to produce, including cross-racial understanding and the breaking down of
racial stereotypes” (Grutter, 2003, p. 308). The Court concluded that “there is no num-
ber, percentage, or range of numbers or percentages that constitute critical mass”
(Grutter, 2003, p. 318).
The Use of Affirmative Action at the UT
Abigail Fisher, a White applicant to the UT at Austin filed suit against the university
after she was denied admissions in 2008. She claimed that the use of a race-based
admissions policy violated her rights under the Equal Protection Clause of the
Fourteenth Amendment. Admissions at UT campuses are based on several factors.
First, under the Ten Percent Law, automatic admission is granted to all high school
seniors in the top 10% of their class to any of the UT campuses. This law was passed
in 1997 by the Texas state legislature in an effort to promote diversity in the university
student body, because high schools throughout Texas are racially segregated.4 Around
75% of admissions to UT campuses are based on the Ten Percent Law. Students not
admitted under the Top Ten Percent Law compete based on an Academic Index (AI)
and a Personal Achievement Index (PAI).
The AI is a formula which combines a student’s high school class rank and stan-
dardized test scores to predict potential GPA in the freshman year. The PAI, developed
by UT in an effort to promote diversity in the study body, is comprised of three scores:
one each for two required essays, and one called the “personal achievement score”
which is an evaluation of the applicant’s entire file. The PAI seeks to identify qualified
students whose abilities are not reflected in the AI. It includes awards and honors,
work experience, demonstrated leadership skills, and involvement in community ser-
vice or other extracurricular affairs. It can also include “special circumstances” such
as socio-economic status of a student’s family, languages other than English spoken in
the household, and status of the household (e.g., whether it was single-parent). Each of
the three components is assigned a score between 1 and 6.
By 2003, in accordance with the Grutter ruling, UT allowed each campus the option
to consider race and ethnicity in admissions, providing the review process was indi-
vidualized, and factors other than race and ethnicity were considered. In effect, race
could now be considered as one factor of an applicant’s PAI. As stressed by UT, how-
ever, an applicant, even with the highest PAI, would not be admitted without a suffi-
ciently high AI and well-written essays.
Because Fisher did not qualify for admission under the top Ten Percent rule, she
was considered for admission based on her AI and PAI scores. She was denied admis-
sion based on these indices as well and claimed that persons of color were admitted
26
Review of Public Personnel Administration 37(1)
with lower scores. The University stated that even if race was not added as a new vari-
able, she still would not have been admitted.
In support of its admission policy, UT offered evidence from a study which indi-
cated that even with the operation of the AI, PAI, and the Ten Percent law, there was
not a “critical mass” of students of color enrolled at UT campuses. The study found,
for example, that in 2002, “90 percent of the classes with 5 to 24 students had one or
zero African-American students and 43 percent had one or zero Hispanic students”
(Fisher, 2009, p. 593). Survey responses indicated that students of color felt “iso-
lated,” and a majority of students reported that there was “insufficient diversity in the
...
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