ICYMI: Diversity Case Appears Before The Supreme Court Once Again

By Brittany Hackett, Communications Staff

It’s a case of déjà vu– the Supreme Court next Wednesday will again hear the college admissions case Fisher v. University of Texas (UT) that challenges the constitutionality of UT’s admissions practices.

The long-running case has been working its way through the courts for six years after Abigail Fisher, a white high school student in Texas who was denied admission to UT, brought the case forward, arguing that minority students with lower credentials had received admission to UT over her, due to one of their policies, and that this violated her rights under the equal protection clause of the 14th Amendment.

According to previous Today’s News coverage, the Fisher case challenged the constitutionality of UT’s admissions practices. UT, following state law, provides guaranteed admission to in-state residents who are in the top 10 percent of their high school class. Though UT admits a majority of its students through the “top 10” program, it also reviews applicants who are not in the top 10. Those applicants are reviewed using various factors including grades, standardized test scores, an essay, leadership qualities and in some cases other “special circumstances” which could include race and socioeconomic status. It was this aspect of UT’s admissions policy that formed the basis of the Fisher claim.

When the case was first before the lower court, NASFAA joined the American Council on Education (ACE) in signing onto an amicus curiae ("friend of the Court") brief in support of diversity in higher education.

The Supreme Court in a June 2013 decision declined to provide new legal interpretation of the constitutionality of the usage of race as a consideration in admissions. Rather, the Court remanded the case back to a lower appellate court for review. In the 7-1 majority opinion, Justice Anthony Kennedy referred to precedent requiring “strict scrutiny” of institutional admission policies that consider race, finding that the lower Court of Appeals did not apply this scrutiny to UT’s policy, sending the case back for review. In other words, the lower court failed to determine whether UT’s admission policy was developed and implemented in a way that is “narrowly-tailored” to achieve diversity.

After it was sent back, the lower court again ruled in favor of UT and the Supreme Court again agreed to hear the case. NASFAA has signed onto another amicus curiae brief with ACE, this time sent to the Supreme Court. The brief outlines the signatories’ support of diversity in higher education, a stance that has been long-held by NASFAA and reaffirmed by a Board of Directors vote last month.

NASFAA in the past has signed onto the following amicus briefs on affirmative action in admissions filed by the American Council on Education:

  • Fisher v. University of Texas at Austin (US Court of Appeals for 5th Circuit, October 2013)
  • Schuette v. Coalition to Defend Affirmative Action (US Supreme Court, August 2013)
  • Fisher v. University of Texas at Austin (US Supreme Court, August 2012)
  • Gratz v. Bollinger, Grutter v. Bollinger (US Supreme Court, August 2002)
  • Board of Regents of the University System of Georgia and Hester v. Johnson (US Court of Appeals for the Eleventh Circuit, October 2000)
  • Smith v. University of Washington Law School (US Court of Appeals, Ninth Circuit, September 1999)

The Court will hear oral arguments on December 9 and is expected to rule sometime in the spring of 2016. Stay tuned to Today’s News for continuing coverage of the case.


Publication Date: 12/3/2015

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