University of Texas is flouting the Constitution with race-based admissions

Fisher v. University of Texas at Austin

Contact: Joshua P. Thompson

Status: The U.S. Supreme Court issued its decision on Jun. 24, 2013, holding that the Fifth Circuit failed to hold the University to strict scrutiny as demanded by "Grutter." The case is at the Fifth Circuit Court of Appeals. PLF's amicus brief on remand was filed on Oct. 11, 2013. The court issued an adverse decision on remand on July 15, 2014. PLF's amicus brief in support of petition for rehearing en banc was filed on Aug. 4, 2014. Awaiting decision.

Fisher Equality Under the Law caseThis case asks whether the admissions policies and procedures at the University of Texas at Austin (UT) which grant preferences to students of certain races and ethnic backgrounds violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

In its amicus brief, PLF argues that, in order to survive strict scrutiny analysis, race-conscious undergraduate admissions policies must be narrowly tailored to meet a compelling governmental interest. For instance, with respect to the narrow tailoring prong, before resorting to race-conscious undergraduate admissions policies, there must be a showing that race-neutral alternatives failed. Here, the university adopted race-conscious policies in spite of successful race-neutral alternatives and they will continue on indefinitely.

The facts that give rise to the case are summarized as follows: In 1996, the Texas Legislature adopted the "Top Ten Percent" law, a race-neutral undergraduate admissions policy to increase minority enrollment. The law promised every student who graduated in the top 10 percent of a Texas high school a seat at one of the campuses of the University of Texas. At UT, the race-neutral policy had a positive effect on minority enrollment. Nonetheless, after the Supreme Court’s decision in Grutter v. Bollinger, 539 U.S. 306 (2003), which held that race could be used as one of many factors in admitting students to the University of Michigan School of Law, the Regents of the University of Texas system modified the admissions policy, authorizing each school to decide whether to consider an applicant’s race. In 2004, UT modified its undergraduate admissions policy to include consideration of an applicant’s race in some circumstances. Students denied admission to UT sued, arguing that the race-conscious admissions policy violated their rights to equal protection under the Fourteenth Amendment.

For recent posts on this case, check out the PLF Liberty Blog.

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