Fisher v. University of Texas (2016)

Fisher v. University of Texas
Supreme Court of the United States
Argued December 9, 2015
Full case name	Abigail Noel Fisher, Petitioner v. University of Texas at Austin, et al.
Docket nos.	14-981
Argument	Oral argument
Prior history	See Fisher v. University of Texas (2013)
Court membership
Chief Justice John G. Roberts Associate Justices Anthony Kennedy Clarence Thomas · Ruth Bader Ginsburg Stephen Breyer · Samuel Alito Sonia Sotomayor · Elena Kagan
Kagan took no part in the consideration or decision of the case.

Fisher v. University of Texas (commonly referred to as Fisher II) is a United States Supreme Court case concerning whether the Court of Appeals for the Fifth Circuit correctly applied strict scrutiny to the University of Texas at Austin's undergraduate admissions policy, in accordance with Fisher v. University of Texas (2013), which ruled that strict scrutiny should be applied to determine the constitutionality of the University's race-sensitive admissions policy and remanded the case back to the Fifth Circuit.

Background

Main article: Fisher v. University of Texas (2013)

Plaintiffs Abigail Noel Fisher and Rachel Multer Michalewicz applied to the University of Texas at Austin in 2008 and were denied admission. The two women, both white, filed suit, alleging that the University had discriminated against them on the basis of their race in violation of the Equal Protection Clause of the Fourteenth Amendment. The University of Texas at Austin accepts students in the top 10% of each Texas high school's graduating class, regardless of their race; under Texas House Bill 588, 81% of 2008's freshman class were admitted under the plan.

Applicants who fail to graduate in the top 10% of their high schools can still gain admission by scoring highly in a process that evaluates their talents, leadership qualities, family circumstances, and race. Fisher had a grade point average of 3.59 (adjusted to a 4.0 scale) and was in the top 12% of her class at Stephen F. Austin High School. She scored 1180 on her SAT (measured on the old 1600-point scale, because UT Austin did not consider the writing section in its undergraduate admissions decision for the 2008 incoming freshman class). The 25th and 75th percentiles of the incoming class at UT-Austin were 1120 and 1370. She was involved in the orchestra and math competitions and volunteered at Habitat for Humanity.

In 2009, United States District Court judge Sam Sparks upheld the University's policy, finding that it meets the standards laid out in Grutter v. Bollinger. That decision was affirmed by a Fifth Circuit panel composed of judges Patrick Higginbotham, Carolyn Dineen King and Emilio M. Garza. In his ruling, Higginbotham wrote that the "ever-increasing number of minorities gaining admission under this 'Top Ten Percent Law' casts a shadow on the horizon to the otherwise-plain legality of the Grutter-like admissions program, the Law's own legal footing aside". A request for a full-court en banc hearing was denied by a 9–7 vote

In September 2011, lawyers representing Fisher filed petition seeking review from the Supreme Court. On February 21, 2012, the court granted certiorari in Fisher v. University of Texas at Austin. The Supreme Court heard the oral argument in October 2012, and handed down its decision on June 24, 2013, which was usually late considering that the case was heard in October 2012. In a 7–1 decision, the Court vacated and remanded the Fifth Circuit's ruling. Writing for the majority, Justice Kennedy concluded that the Fifth Circuit failed to apply strict scrutiny in its decision affirming the admissions policy. Instead, he wrote, the Fifth Circuit held that Fisher could only challenge "whether the University's decision to use race as an admissions factor 'was made in good faith.' Justice Ginsburg was the lone dissenter, who argued in favor of affirming the judgment of the Fifth Circuit in its entirety.

On remand, in November, the Fifth Circuit court heard oral arguments from both sides. On July 15, 2014, the Fifth Circuit announced its decision in favor of UT Austin, with Judge Garza dissenting. Fisher sought a rehearing en banc with the Fifth Circuit which was denied on 12 of November in a 10–5 decision. Fisher then filed a petition for certiorari to the Supreme Court. The Supreme Court again agreed to hear the case on June 29, 2015, to decide whether the Fifth Circuit’s determination that the University of Texas at Austin’s use of racial preferences passed strict scrutiny and can be sustained. Justice Elena Kagan again recused herself from this case due to her prior involvement as Solicitor General.

Oral argument

On June 29, 2015, the Supreme Court granted Fisher's second challenge on the UT Austin's admissions policy. The case was assigned docket number 14-981 and oral arguments were heard on December 9. Legal analysts predict from the justices' questions that the Court would likely either remand the case again to the lower courts for additional fact-finding, strike down UT Austin's policy, or strike down affirmative action in college admissions nationwide.

During oral arguments, Justice Scalia raised the mismatching theory and questioned whether black students admitted to top-tier schools suffer because the courses are too difficult. Scalia commented that "There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well. One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas. They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them." The comments led to outcry from the University of Texas's African American students, and spurred the creation of the Twitter hashtag #StayMadAbby. As Justice Antonin Scalia died on February 13, 2016 and Justice Elena Kagan has recused herself, the case will be decided by the seven remaining justices.

See also

• Fisher v. University of Texas (2013)

External links

• SCOTUSBlog page on the case