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Fisher v. UT is a court case involving the University of Texas at Austin and its race-conscious admissions policy. The case reached the Supreme Court in 2012, but was sent back to an appeals court. The case has the potential to stop the use of affirmative action policies in the U.S., but the lower courts have ruled in favor of the university.In 1996, the Fifth Circuit Court of Appeals’ Hopwood v. Texas decision prevented universities in the state from considering race as a factor in admissions decisions. In response, the Texas Legislature passed the Top Ten Percent Law in 1997 to allow for diversity at state universities. The law guaranteed admission for all Texas high schoolers in the top 10 percent of their class to any state university.The law remained in place even after the U.S. Supreme Court’s Grutter v. Bollinger decision in 2003 reinstated the consideration of race in admissions across the country.Abigail Fisher and Rachel Michalewicz applied to UT-Austin in 2008 and were denied admission. Both students were not in the 10 percent of their classes and were rejected under the university’s race-conscious holistic review process. That year, more than 80 percent of incoming students were accepted under the top 10 percent rule.Arguing the university’s race-conscious admissions policy violated the Equal Protection Clause of the Fourteenth Amendment, the two sued the university with the financial backing of Edward Blum and his Project on Fair Representation. After a federal district court judged ruled in favor of the university in 2009 and the Fifth Circuit Court followed suit in 2011, Michalewicz withdrew from the case.By the time the case reached the Supreme Court in 2012, Fisher had graduated from Louisiana State University. In an unexpected decision, the court sent the case back to Fifth Circuit Court, ruling that it did not apply “strict scrutiny.”A year later, the Fifth Circuit Court again ruled in favor of UT-Austin. Fisher’s request to have the entire Fifth Circuit panel hear the case was denied. Fisher is seeking to take the case back to the Supreme Court. If the court again takes up the case and rules in favor of Fisher, the decision would effectively reverse the Grutter decision.

UT to Supreme Court: We Need Affirmative Action

Photo illustration by Todd Wiseman/MarkFisher
The Supreme Court will hear arguments on a lawsuit challenging the University of Texas at Austin's use of affirmative action in admissions decisions.

From the Texas Tribune — The University of Texas at Austin needs to consider race in admissions if it wants a diverse, representative student body, the school told the U.S. Supreme Court 0n Monday in a 70-page brief filed in advance of oral arguments in the case Fisher v. The University of Texas at Austin.

The nation's high court will hear arguments in the case, which could bring an end to affirmative action at UT Austin, this December.

The school was sued in 2008 by Abigail Fisher, who argued she was denied admission to UT Austin because she is white. Her case has already reached the Supreme Court once. In that iteration, the court upheld the use of affirmative action nationwide but asked a lower court to scrutinize UT Austin's policy. The lower court upheld the school's use of race in admissions, and the Supreme Court now is reviewing that ruling.

In Monday’s brief, UT Austin cites its troubled racial history, noting that a black student wasn’t admitted to the school until 1950. The school also stresses that race is still an issue on campus today. This year, the school noted, UT Austin became embroiled in a debate about the future of an on-campus statue of Confederate President Jefferson Davis. The statue was eventually removed from its prominent location and will be housed in a U.S. history center instead.

“UT’s student body brought many different viewpoints to that debate, and this event is just one of many constant reminders that race remains relevant in Austin, as in America, today,” the brief says.

That’s just one case in which diversity was valuable on campus, the school said.

“The educational benefits of diversity include, but are not limited to, bringing unique and direct perspectives to the issues and topics discussed and debated in classrooms, promoting cross-racial understanding, breaking down racial and ethnic stereotypes, and creating an environment in which students do not feel like spokespersons for their race,” the brief says.

The last time the Supreme Court heard the case, it ruled that schools may use affirmative action, but only if they can show that race-neutral policies don’t do the job of diversifying their student bodies. UT Austin’s opponents have argued that the school does have a sufficient race-neutral policy: the top 10 percent rule. 

Created in 1997, soon after affirmative action was temporarily banned in the state, the rule required state schools to admit students who graduated in the top 10 percent of their high school class, regardless of test scores or other factors. That helped increase racial diversity because Texas high schools are still largely segregated.

But UT Austin argued that relying solely on that rule “excludes consideration of the broad array of factors that contribute to a genuinely diverse student body.” The school wants people with varied skills and backgrounds, not simply people of different races, the brief said.

Fisher’s lawyers have disputed that argument, saying the top 10 percent rule has been successful. Her lawyers also suggested that UT Austin simply wants to be able to admit more rich minorities, rather than minorities from schools in economically disadvantaged areas.

UT Austin disagrees.

“She has a dim view of success — and diversity,” the brief says.

Right now, UT Austin caps the number of students automatically admitted at 75 percent of each freshman class. Next year, that means that students who finished in the top 7 percent of their classes will be automatically admitted. The rest of UT Austin students will be admitted under what the school calls its “holistic review process,” which considers extracurricular activities, non-academic accomplishments, race and more.

The Supreme Court is expected to rule on the case sometime next year.

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