Supreme Court Upholds Limited Use of Affirmative Action in UT Case

Abigail Fisher's long fight against the University of Texas' admissions system is over.

Fisher, who has since graduated from Louisiana State University, didn't get into UT-Austin, her first-choice school, in 2008. She sued the school, claiming that the system it uses for admitting students who don't automatically get in thanks to their high school class rank unfairly excluded her from getting in because she is white. Thursday morning, a divided Supreme Court ruled 4-3 for the university, allowing UT to continue to consider race as part of what the school calls the "personal achievement index."

Fisher's  grades, test scores and the curriculum and rigor of her high school simply weren't good enough, the school has argued. Although she achieved a 3.59 high school GPA and scored a respectable 1180 on the SAT, Fisher did not finish in the top 10 percent of her high school class, which was the only way she could've guaranteed admission to the state school of her choice under Texas law.

In 2008, 92 percent of all Texas residents admitted to UT as freshmen were part of the top 10 percent of their high school class, which left Fisher competing for one of just 841 spots available to everyone else. 

Fisher believed that the school's consideration of race — race isn't given a numerical value in the application process, but is considered in a potential student's application — was actually what doomed her. The Project on Fair Representation, a legal defense fund that has challenged affirmative action cases around the country, picked up her case, which has now been heard twice by the Supreme Court.

In 2013, the court voided a 5th Circuit Court of Appeals ruling for the university and sent the case back for evaluation under the "strict scrutiny" standard which the Supreme Court said must be applied to all uses of race in college admission in a 2003 case.

After the 5th Circuit, perhaps the most conservative circuit court in the country, again sided with the university, Fisher and her attorney Edward Blum, came again to the Supreme Court last December.

At oral argument, Justice Antonin Scalia vigorously questioned the university's position, suggesting that minority students might be better off if they didn't get into UT. "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," he said. "They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them ... I'm just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer."  

Scalia's death earlier this year might've prevented a 4-4 tie in the case — Justice Elena Kagan recused herself from the case because she participated in the 2013 arguments when she was Solicitor General — which would've seen the 5th Circuit decision stand, but wouldn't have created a precedent.

After Wednesday's ruling, Fisher issued the following statement: "I am disappointed that the Supreme Court has ruled that students applying to the University of Texas can be treated differently because of their race or ethnicity. I hope that the nation will one day move beyond affirmative action." 
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Stephen Young has written about Dallas news for the Observer since 2014. He's a Dallas native and a graduate of the University of North Texas.
Contact: Stephen Young