U.S. Supreme Court To Hear Texas Affirmative Action Case – Fisher v. University of Texas

Project on Fair Representation
1150 Seventeenth Street NW Suite 910
Washington, DC 20036
(703) 505-1922

For Immediate Release: February 21, 2012

Contact: Edward Blum
(703) 505-1922

U. S. Supreme Court To Hear Texas Affirmative Action Case — Fisher v. Univ. of Texas

Project on Fair Representation and Abigail Fisher Applaud Decision

(Washington, DC) Today, the United States Supreme Court granted certiorari in Abigail Noel Fisher v. University of Texas, a case challenging the constitutionality of UT’s reintroduction of racial preferences in the undergraduate admissions process in 2004.

The Project on Fair Representation, a Washington, DC-based legal defense foundation, provided counsel to Ms. Fisher. Attorneys for Ms. Fisher are Bert Rein, William Consovoy, Thomas McCarthy, and Claire Evans at Wiley Rein, LLP in Washington, DC. (202) 719-7000

In 2008, Abigail Fisher sued UT in federal court after she was denied admission, arguing that but for the fact she is Caucasian, she would have been admitted. Ms. Fisher lost her case at the US District Court in Austin and at the Fifth Circuit Court of Appeals. She filed her appeal with the Supreme Court on September 15, 2011. The petition for certiorari can be found at: www.projectonfairrepresentation.org.

Edward Blum, director of the Project on Fair Representation, applauds the decision. Blum said, “Abby Fisher and thousands of past applicants have been unfairly denied admission to UT based upon its unconstitutional use of racial preferences. It is deeply gratifying that the justices have agreed to hear this case.”

Blum added, “This case presents the Court with an opportunity to clarify the boundaries of race preferences in higher education or even reconsider whether race should be permitted at all under the Constitution’s guarantee of equal protection.”

At issue in Fisher is whether UT should have reintroduced racial and ethnic preferences after the US Supreme Court’s ruling in Grutter v. Bollinger (2003). In Grutter (5-4), the high court wrote that a student’s race could be a factor in admission decisions in order to achieve a diverse student population.

However, the Grutter opinion highlighted that before a school resorts to racial preferences, it must first make a good faith effort to find a race-neutral means to achieve diversity.  Fisher argues that UT had a race-neutral policy in place in 2003 that was extremely effective in achieving diversity, so the school’s reintroduction of racial preferences was unnecessary, thus unconstitutional.

Because of a 1997 ruling from the Fifth Circuit Court of Appeals in Hopwood v. Univ. of Texas, UT and all other private and public universities in Texas were forbidden from considering a student’s race or ethnicity in the admissions process.  In response to Hopwood, the Texas legislature enacted a law requiring UT and all public universities to admit all Texas high school seniors ranking in the top ten percent of their classes. Shortly after its introduction, the Top Ten Percent Law had the effect of creating a significantly more diverse freshman class than did UT’s earlier affirmative action policies. By 2004, 21.4% of the entering class was African American and Hispanic, up from 15.3% in 1997. Lawyers for Ms. Fisher contend that the effectiveness of the Top Ten Percent law forecloses UT’s consideration of a student’s race or ethnicity.

Statement of Abigail Fisher: “My family and I are grateful that the US Supreme Court has agreed to hear my case. I hope the Court will decide that all future UT applicants will be allowed to compete for admission without their race or ethnicity being a factor.”

Blum noted that, among its many mistaken justifications, “It is deeply troubling that UT has justified its racial preference policies based upon the lack of undergraduate ‘classroom diversity’. If allowed to remain a goal, UT and hundreds of other schools will be permitted to racially gerrymander every classroom in order to achieve proportional racial balance. This is gravely wrong.”

Abigail Fisher and her family will not be available to speak to the media.

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