EAB Daily Briefing Primer: Fisher v. University of Texas at Austin

Essential information and timeline

Case basics

Fisher I docket No. 11-345

Fisher II docket No. 14-981

Petitioner: Abigail N. Fisher

Respondent: University of Texas at Austin, et al.

Four justices voted in favor of UT: Justices Anthony Kennedy, Stephen Breyer, Sonya Sotomayor, and Ruth Bader Ginsberg.

Three voted against: Chief Justice John Roberts Jr. and Justices Clarence Thomas and Samuel Alito.

Justice Elena Kagan did not vote because she worked on the case earlier in her career.


In 2008, Abigail Fisher (a Caucasian) applied to and was rejected from the University of Texas at Austin (UT).

In accordance with Texas law, all high school seniors in the top 10% of their class must be admitted to public universities. The other 90% have race considered as an application factor. Fisher was not in the top 10% of her class.

Fisher filed a lawsuit against UT and other defendants saying that the policy violated two anti-discrimination laws: 42 U.S.C. §1983 and the equal protection clause of the Fourteenth Amendment.

Fisher's lawyers argued that race does not need to be considered in the application process because there are other ways to develop diverse student bodies.

The case made its way up to the Supreme Court, where justices remanded it back to a lower court to be considered under stricter legal standards.

In late June, SCOTUS again agreed to hear the case in fall 2015.

On June 23, 2016 the court ruled in favor of race-conscious admissions at UT.


March 25, 2008: Fisher is rejected from UT-Austin but admitted to a program that would allow her to transfer in after her freshman year. She later enrolls at Louisiana State University.

April 7, 2008: Fisher files a complaint with the Western District of Texas saying that UT-Austin's consideration of race in her application violated her right to Equal Protection. Two weeks later, Rachel Michalewicz joins the case. The two seek a temporary injunction requiring UT to reevaluate their applications without race.

May 29, 2008: The court denies the temporary injunction. Soon after, the District Court hears the arguments.

August 17, 2009: The court rules UT's admission policy constitutional. Fisher and Michalewicz file an appeal to the Fifth U.S. Circuit Court of Appeals.

January 18, 2011: The circuit court rules UT's admission policy constitutional.

September 15, 2011: Fisher files a petition for writ of certiorari, requesting the Supreme Court of the United States (SCOTUS) hear the case. Michalewicz withdraws from the lawsuit.

February 21, 2012: SCOTUS agrees to hear Fisher's case.

October 2012: SCOTUS hears oral arguments.

June 24, 2013: Following a 7-1 vote, SCOTUS sends the case back to the appellate court for review because it found the Fifth Circuit had not applied a strict-enough legal standard. Justice Ruth Bader Ginsburg filed the only dissenting opinion. Justice Elena Kagan did not consider the case.

September 12, 2013: The Fifth Circuit Court of Appeals releases a briefing order, setting the stage for the case's future. The court asked seven questions, including whether UT-Austin had reached a "critical mass" of minority students—or whether race-based admission should cease because its aim had been reached.

July 15, 2014: Appellate court rules 2-1 in favor of UT-Austin.

November 2015: U.S. Court of Appeals for the Fifth Circuit denies Fisher's petition for a rehearing.

February 10, 2015: Fisher files a petition for a writ of certiorari to SCOTUS, arguing that the appellate court still had not applied the stricter standards.  

June 29, 2015: SCOTUS grants the petition to hear the case. Kagan will once again recuse herself from the case.

June 23, 2016: SCOTUS rejects Fisher's challenge to race-conscious admissions at UT.

Potential industry effects

By ruling against Fisher, the justices upheld a 2003 decision in Grutter v. Bollinger that said universities may not use a point system to grow levels of minorities in their student bodies but may account for race in vaguer ways.

Studies show that banning affirmative action policies would likely cause the number of black at Latino students at elite schools to drop as numbers of Asian-American and Caucasian students increased.

Although the ruling applies only to UT-Austin, the decision could have major implications for campuses nationwide because many also use "critical mass" as justification for race-conscious admissions policies.

The justices' ruling in favor of UT surprised many people, because legal experts say that SCOTUS generally does not hear cases similar to ones they recently ruled on—unless the justices want to change something.

The conservative wing of the Supreme Court—Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito Jr.—were expected to vote against UT-Austin and consideration of race by the government, while the liberal wing of Justices Stephen Breyer, Sonia Sotomayor, and Ginsburg were expected to support affirmative action.Scalia died before the court made a ruling.

Swing vote Justice Anthony Kennedy continued his recent trend of voting with the court's liberal wing. Prior to the ruling, some were concerned he would side with the conservatives.In a prior case, he called "critical mass" a "delusion" used by schools to achieve numerical diversity goals.

Sources: Daily Texas, 6/24/2013; Messamore, Daily Texas, 6/25/2013; SCOTUSblog, accessed 7/8/2015; SCOTUSblog [2], accessed 7/8/2015; Denniston, SCOTUSblog, 9/12/2013; Grasgreen, Politico, 7/16; Denniston, SCOTUSblog, 2/11/2015; Liptak, New York Times, 6/29; The Conversation, 7/2; Jaschik, Inside Higher Ed, 6/30).



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