No More Bites of the Fisher Apple

The Supreme Court ruling in Fisher v. University of Texas at Austin restores constitutional order to college admissions, writes Michael A. Olivas.

June 24, 2016
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The U.S. Supreme Court finally drove a stake through the heart of the discredited claim by Abigail Fisher, a white student, that she was illegally discriminated against in her unsuccessful application in 2008 to the University of Texas at Austin.

Yesterday’s decision in Fisher v. University of Texas at Austin let stand the trial court and Fifth Circuit opinions that had held she was treated fairly in her application. She was not admissible to the university through the top 10 percent plan that accords automatic admission to Texas high school students who graduate near the top of their classes. Nor was she admissible through special admissions full-file reviews. And it should be noted that, although whites constitute less than one-third of all K-12 enrollments in Texas, they make up more than half the students admitted to the university through either of these pathways.

Both the percent plan and the full-file review are nonracial approaches to admissions, and the court’s 2003 ruling in Grutter v. Bollinger held that an educational institution could consider an applicant’s race if it did so through such means. Why would UT be the only institution in the country ineligible to follow Grutter?

Fisher’s claim, which did not challenge the percent plan directly, still tried to have it both ways. Even if I cannot be admitted through a nonracial percent plan program, she was basically saying, and even if I am not qualified to be admitted through the discretionary option, I must have been denied my rightful place by less qualified students of color. This entitlement argument is the dictionary-perfect example of a claim of white privilege.

In yesterday’s ruling, the court held: “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” At the same time, it called on UT to regularly evaluate data and consider student experience in order to “tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest. The university’s examination of the data it has acquired in the years since petitioner’s application, for these reasons, must proceed with full respect for the constraints imposed by the Equal Protection Clause. The type of data collected, and the manner in which it is considered, will have a significant bearing on how the university must shape its admissions policy to satisfy strict scrutiny in the years to come.”

No admissions policy since 1978’s Regents of the University of California v. Bakke decision has prompted as much study and data analysis as has this series of cases and Fisher’s claim. And as with any comprehensive admissions policy, it will certainly continue to be evaluated.

This case has threatened to become like Dickens’s Jarndyce v. Jarndyce, dragging on for generations, but it is now time to move on. That is what I do when I lose cases, as in today’s disappointing Texas v. U.S. that allows a Brownsville federal judge’s improvident injunction of President Obama’s Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans and Lawful Permanent Residents programs. I will live to fight another day on this case, and Abigail Fisher and her lawyers should also give it a rest.

This decision restores constitutional order to college admissions, and the court should stop accepting such false claims. The last time a minority applicant of color successfully challenged admissions practices was, ironically, Sweatt v. Painter, more than 65 years ago, when the court examined and struck down the racial exclusion then practiced by the same institution.

Finally, through too many twists and turns, this applicant and her supporters have in essence laid a claim to minority status, even as their numbers belie any disadvantage. Fortunately, the court saw through to the truth of the matter. Affirmative action lives on, for now.


Michael A. Olivas is the Bates Distinguished Chair in Law at the University of Houston Law Center, where he teaches immigration law and higher education law, and interim president of the University of Houston Downtown. He was a consultant to the late Texas State Representative Irma Rangel, whose leadership led to the original percentage plan at the University of Texas.


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