The Supreme Court has upheld an affirmative action program used by the University of Texas at Austin to admit undergraduate students. The case, Fisher v. University of Texas at Austin, involves a challenge to the policy brought by Abigail Fisher, a white student denied admissions to UT in 2008. The 4-3 opinion authored by Justice Kennedy rejects Fisher’s argument that UT’s admissions policy violates the Constitution. Justice Kagan recused herself because she worked on the case while she was Solicitor General.


UT admits 75 percent its entering classes with a 10-percent plan. This plan, adopted by the Texas legislature in 1997, guarantees automatic admission to public colleges and universities for high school students who graduate in the top 10 percent of their classes. UT admits the remainder of its entering classes using a policy that considers academic achievement along with several nonacademic measures, including race.


UT argued that racial diversity enhances the educational experience. The Court agreed and found this interest sufficiently compelling to justify the use of affirmative action. The Court explained that racial diversity “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better-understand persons of different races.” This finding is consistent with two important precedents, Bakke and Grutter, which conclude that diversity strengthens higher education.


The Court then examined whether UT overly utilized race and found that it had not. UT adopted its affirmative action policy after it first tried race-neutral measures that proved insufficient. Also, because the 10-percent plan fills all but 25-percent of the available spaces at UT, class rank, not race, is the strongest factor in the school’s admissions process. Furthermore, UT uses a “holistic” approach, in which race is merely a “factor of a factor of a factor” in the admissions process. UT’s holistic evaluation includes, among other things, consideration of an applicant’s socioeconomic background and SAT scores and whether the student lives in a single-parent household or with parents who are English-language learners. The holistic nature of UT’s admissions policy makes it plainly consistent with standards established by Court precedent.


While the Court reaffirmed the constitutionality of affirmative action in higher education, Fisher raises a critical question going forward: Does the 10-percent plan provide a race-neutral alternative to affirmative action? The Court declined to answer this question because the automatic admissions plan had existed for just three years when Fisher applied to UT. The Court held that any data for this short period of time would not allow for meaningful review of the policy’s long-term effects. The Court, however, held that UT has an “ongoing obligation” to make sure its admission practices adhere to constitutional standards. This holding will undoubtedly invite future litigation.


Fisher also reveals several troubling contradictions in the Court’s racial jurisprudence. For instance, the Court held that UT must monitor its policies to determine whether the 10-percent plan diminishes or eliminates the need for affirmative action. But the 10-percent plan is really a race-conscious policy rather than a race-neutral alternative. The Texas legislature, as the Court concedes in passing, enacted the policy in order to improve racial diversity at the state’s public colleges and universities. Thus, future litigants could possibly argue that the 10-percent plan standing alone violates the Constitution.


In addition, while the Court implicitly legitimizes the 10-percent plan, this policy undeniably promotes diversity in colleges and universities because Texas high schools are highly segregated by race. Extensive social science research finds that racial isolation severely impedes the educational achievement of students of color, especially African-Americans and Latinos. Despite these harms, the Court has held that racial segregation in public schools does not violate the Constitution so long as it results from economic inequality or neighborhood segregation, rather than a statutory mandate. In the 2008 case Parents Involved in Community Schools, the Court invalidated race-conscious assignment policies that Seattle, Washington and Jefferson County, Kentucky implemented to prevent the inequities associated with racial isolation. Racial inequality in primary education, which Parents Involved in Community Schools makes more difficult to remedy, strengthens arguments for the use of affirmative action by colleges and universities. Court precedent, in turn, treats affirmative action with hostility, Fisher notwithstanding. Furthermore, although racial inequality in early education could justify remedial usage of race by colleges and universities, the Court has only credited the diversity rationale for affirmative action in higher education, and it has never accepted racial justice arguments in this setting.


Although existing precedent makes it harder for states to alleviate resegregation, future changes in the composition of the Supreme Court and lower federal courts could create opportunities for different outcomes. Fisher answers the immediate question regarding the legitimacy of affirmative action, but it raises other important matters that the Court will likely confront in future litigation.

Darren Hutchinson

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson received a B.A.from the University of Pennsylvania and a J.D. from Yale Law School.

Prior to his career in law teaching, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.

Professor Hutchinson has written extensively on issues related to Constitutional Law, Critical Race Theory, Law and Sexuality, and social identity theory.

Visit his Faculty Profile

Visit his SSRN author page

Comments are closed.