Lawsuit Raises Issue of Why Affirmative Action Is Still Needed


Cindy Casares Portrait

A version of this story ran in the January 2012 issue.

The fate of affirmative action at America’s colleges could rest on a dispute over $100. Abigail Noel Fisher, a white woman from Richmond, Texas, has sued the University of Texas over the $50 application fee and $50 housing deposit she forfeited when the school did not admit her to its Austin campus as a freshman in 2008.

Fisher ended up attending Louisiana State University and expects to graduate in May. But apparently she’s still angry she didn’t get into UT. She is asking the U.S. Supreme Court to hear her case in hopes that she can win back the fees she would have lost even if she had been admitted to UT. The more important issue—and the reason conservatives have latched on to Fisher’s case—is the constitutionality of race-based admission policies. Fisher and her lawyers want the High Court to rule the university’s policy of considering race on top of the state-mandated “top 10 percent” rule, which requires Texas’ four-year public universities to admit students in the top 10 percent of their graduating high school class, unconstitutional. Fisher didn’t achieve that rank.

The law currently allows universities to consider race to a limited degree in the admissions process as long as no quotas are in place. That stems from a landmark 1978 case, Regents of the University of California v. Bakke, in which the Supreme Court deemed unconstitutional the practice of setting aside a certain number of spots for African-Americans.

Some conservatives don’t like universities considering race at all when choosing which students to admit, leading them to file friend-of–the-court briefs asking the Supreme Court to hear Fisher’s case in hopes of overturning these policies.

So far, lower courts have agreed that UT is well within the law in considering race as a factor after filling about 62 percent of its incoming freshman spots with top-10-percent students, a strategy known as the “plus system.” That policy began after the 1996 case Hopwood v. Texas banned the use of race in admissions decisions at all public postsecondary institutions. The state of Texas became one of the first to enact the top-10-percent rule.

In 2003, the Supreme Court upheld the “plus system” admissions policy of the University of Michigan Law School in Grutter v. Bollinger, ruling that the school had a compelling interest in promoting class diversity and that its policy did not amount to a quota system.

The Grutter v. Bollinger ruling constrained the 5th U.S. Circuit Court of Appeals when it considered Fisher’s case. The court decided that Texas uses race as a plus system, not a quota system. If Fisher v. University of Texas at Austin should go before the Supreme Court, we could be looking at an end to the plus system—and the end of any consideration of race in college admissions.

The case raises the very question of whether affirmative action is still needed in this country. I’m sure you won’t be surprised to learn that I think it is, but to better make my case, I consulted the facts.

Even with the top-10-percent rule in place, Texas’ diversity isn’t reflected in its top-tier public universities. Latino and African-American students are dramatically underrepresented at UT and Texas A&M. Latinos constitute 38 percent of Texas residents, according to the 2010 Census, but just 17 percent of the UT student body.

Which is why the court, in the Grutter case, supported the “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The court in Grutter held that an interest in obtaining a “critical mass” of minority students at the law school was indeed a “tailored use.”

Adding to UT’s case are recent guidelines issued Dec. 2, 2011, by the U.S. departments of Education and Justice that focus on “the compelling interest of achieving diversity.” Both departments filed friend-of-the-court briefs in February 2010 with the 5th Circuit in support of UT’s case. The Supreme Court justices will decide in mid-January whether to take up Fisher’s case.

My guess is they won’t. At the end of the day, we’re talking about a young lady with not-so-great grades that didn’t get into a top-tier public school. Is that a breakdown of the system? I don’t think so.