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Fisher v. University of Texas: An Objective Analysis

Blog Category: Affirmative Action

Written by: *Jay S. Patel

The use of race in admissions has been hotly debated; proponents extolling its use to create diverse student bodies, critics denouncing it as a form of “reverse discrimination”. Recognizing these competing objectives, the Supreme Court has continually balanced the appropriateness of affirmative action policies against the weighty interests of equal protection.

Equal Protection and Affirmative Action
Equal protection generally forbids the government from treating citizens in an unequal manner. [1]  If a state or the federal government attempts to treat citizens in an unequal manner, their conduct will be reviewed under three different governing standards. Because affirmative action necessarily involves race, any policy purporting to use race is reviewed under the most rigorous standard: strict scrutiny. [2]  Strict scrutiny analysis bars the use of race unless its inclusion furthers a legitimate and compelling governmental interest and the use of race in the policy is narrowly tailored to that end. [3]  Supreme Court jurisprudence has also added two limitations in affirmative action cases. University officials can only use race as a plus factor, that is, they can view an applicant’s race in light of their entire application. [4]  Additionally, officials cannot assign specific “points” for an applicant’s race, or set aside a fixed number of seats for minority applicants. [5]

University of Texas Plan: Proper or Improper?
The University of Texas plan is proper under Grutter. Provided the Supreme Court does not overrule Bakke and its progeny, the University of Texas plan passes constitutional muster. The University of Texas demonstrated that after the passage of the “Top Ten” law, minority enrollment dropped to levels not seen since the mid 1990’s.[6]  Given the increases in the minority population in Texas in the interim, the state demonstrated a compelling interest in creating a diverse class that provided benefits for all matriculants.[7]  Their interest was legitimate by Grutter’s prescription.  Grutter asked whether a contested program was narrowly tailored to achieve an overall goal: a rich, vibrant and diverse class of matriculants.[8]  On this, it was successful. The program did not set aside seats for minority students, nor did it award special “points” to minority applicants.[9]  Its use of race was nominal and only one of many factors which was considered in a methodical and precise formula designed to admit the top students.[10]

Under the rigorous standard set forth by the Supreme Court in equal protection cases, and the special factors prescribed to govern affirmative action policies, the University of Texas policy should be upheld as proper under Grutter.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.


*Jay S. Patel is currently a staff member on the Widener Journal of Law, Economics & Race. To learn more about Jay S. Patel click the link to visit his personal page: Jay S. Patel
[1] See Grutter v. Bollinger, 539 U.S. 306, 326 (2003); U.S. Const. amend XIV, § 1.
[2] Grutter, 539 U.S. at 326.
[3] Id. (emphasis supplied).
[4] Id. at 334 (quoting Regents of the University of California v. Bakke, 438 U.S. 265, 315 (1978) (opinion of Powell, J.)
[5] See Gratz v. Bollinger, 539 U.S. 244, 270 (2003).
[6] Brief of Respondent at 10, Fisher v. University of Texas at Austin, No. 11-345 (2012).
[7] Id.
[8] Grutter, 539 U.S. at 328.
[9] Brief of Petitioner, supra note 6, at 11.
[10] Id. at 11-14 (relaying in significant depth the methods employed to judge applicants and noting the minimal use and impact of race in admissions).

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