Supreme Court Decides To Revisit Affirmative Action

By Sheryl Estrada

The Supreme Court is once again involved in the affirmative action case Abigail Fisher vs. The University of Austin at Texas, announcing Monday it will hear an appeal by Fisher, for a second time, this fall.


Fisher filed a lawsuit in 2008 after she was denied admission to the University of Texas at Austin. As a white applicant, she claimed she experiencedreverse discrimination, and use of race as a consideration in admission decisions isin violation of the equal protection clause of the Fourteenth Amendment.

In Texas, the top 10 percent rule provides all graduating high school students who finish in thetop 10 percentof class guaranteed admission at any public university in the state. The rule was said to create racial diversity. In 2009, the rule changed to assure admission to the University of Texas at Austin for the top eight percent of high school seniors instead of the top 10 percent. The school also considers race and other factors in admission.

Fisher did not meet the requirements to be considered in the top 10 percent when she applied for admissionin 2008. Her argument is other students accepted to the school that were not top 10 applicants and had lower test scores than hers were entitled to racial preferences.

The Western District of Texas upheld the legality of the university’s admission policy in a summary judgment in 2009. Fisher’s case was appealed to the Fifth Circuit in 2011, which also ruled in the school’s favor.

Her case reached the Supreme Court for the first time in October 2012, after she graduated from an out-of-state school. The justices heard the case but did not act for eight months. In June 2013, in a 7-1 ruling, the Supreme Court gave Fisher another chance in the U.S. Court of Appeals for the Fifth Circuit in New Orleans. It is considered one of the most conservative courts in the country.

In July 2014, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld, 2 to 1, that the University of Texas at Austin can continue using affirmative action in its admission policies. In February, Fisher appealed to the Supreme Court for a second time prompting a review this fall.

Fisher’s appeals to the court have been facilitated by The Project on Fair Representation (POFR) directed by Eric Blum. Blum controls thelegal-defense fund, which has the sole purpose to “facilitate pro bono legal representation to political subdivisions and individuals that wish to challenge government distinctions and preferences made on the basis of race and ethnicity.” Essentially, the nonprofit funds lawsuits that have the possibility to eliminate partialities based on race.

According to an investigative report by ProPublica in 2013, the University at Texas, Austin did offer provisional admission to students with lower grades and test scores than Fisher the year she applied; however, “Five of those students were Black or Latino. Forty-two were white.”

Fisher’s grade point average and SAT scores simply may not have been competitive enough for the flagship university:

Neither Fisher nor Blum mentioned those 42 applicants in interviews. Nor did they acknowledge the 168 Black and Latino students with grades as good as or better than Fisher’s who were also denied entry into the university that year. Also left unsaid is the fact that Fisher turned down a standard UT offer under which she could have gone to the university her sophomore year if she earned a 3.2 GPA at another Texas university school in her freshman year.

In court filings, university officials claim that “even if Fisher received points for her race and every other personal achievement factor, the letter she received in the mail still would have said no.”

Justices such as Antonin Scalia and Clarence Thomas have been adamant about their rejection of affirmative action.

In 2013, in his separate opinion on Fisher v. University of Texas at Austin, Thomas, the only Black judge on the court, rejected that diversity in education has educational benefits.

“As should be obvious, there is nothing ‘pressing’ or ‘necessary’ about obtaining whatever educational benefits may flow from racial diversity,” he wrote.

In April 2014, the Supreme Court upheld a constitutional amendment that bans affirmative action in admissions to Michigan’s public universities.

According to the New York Times, “In states that have banned affirmative action in college admissions, prominent public universities have tended to enroll fewer Black and Hispanic freshmen.”

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