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Issue Analysis

    Fisher v. University of Texas: Here’s Your Fact Sheet!

    Abigail Fisher and Rachel Michalewicz, two Caucasian women, were denied admission to the University of Texas and subsequently filed suit alleging that the university’s selection process discriminated against them on the basis of race. Lower courts upheld its constitutionality in accordance with the Grutter v. Bollinger (2003) ruling.

    Michalewicz withdrew her suit, but Fisher filed a petition for a writ of certiorari in 2011. According to the plaintiff’s legal representation, the university’s “reintroduction of racial preferences is blatant racial balancing.” Fisher’s petition was granted in February.

    What follows is a background of the ongoing case.

    Fisher v. University of Texas

    The Supreme Court listened to oral arguments Wednesday. The Wall Street Journal reported the hearing in real time. I’ll excerpt a few of the most important details.

    11:06 am | Much of the attention today will fall on Justice Anthony Kennedy, whom both sides see as the deciding vote.

    11:28 am | A 4-4 split is possible. If the court does split, the lower-court ruling upholding the UT affirmative-action program will stand.

    12:12 pm | Justice Kennedy, however, also appeared interested in the concerns raised by Chief Justice Roberts and Justice Alito: How does the university know when it’s reached a critical mass of minority students? Remember, the court has ruled that quotas or targets aren't allowed.

    12:26 pm | Justice Sotomayor suggests UT’s policy was motivated at least in part by a study showing that minority students felt isolated in the classroom.

    12:42 pm | Does a 1/4 Hispanic check the Hispanic box or the ‘multiracial’ box on the application form?, Chief Justice Roberts asked. When [UT’s legal representation] said it was the applicant’s choice, the chief was ready with a follow-up: What about 1/8?

    Sidebar (yes, a brilliantly intended pun) — the succeeding 20- to 30-minute discussion on the ease of ‘affirmative action fraud’ is worth reading verbatim on the Journal’s website.

    1:16 pm | [Solicitor General Donald] Verrilli filed a brief on behalf of several government departments, including the Defense, Education, Commerce and Labor departments, asserting a “compelling” government interest in promoting racial and ethnic diversity.

    1:26 pm | Justice Alito asks: Do you believe that black and Hispanic students from privileged backgrounds deserve a preference? Mr. Verrilli says that’s not how he understands the UT program.

    And, thus, oral arguments end here. The Journal predicts that a ruling will take at least a few months, but we can always try to forecast what will happen.

    Select Quotes from Supreme Court Justices

    Antonin Scalia (1995):

    To pursue the concept of racial entitlement — even for the most admirable and benign of purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred.

    Clarence Thomas (2008):

    [Affirmative action] has become this mantra and there almost has become this secular religiosity about it. I think it almost trumps thinking. … We’re going to run into problems if we say the Constitution says we can consider race sometimes.

    Ruth Bader Ginsburg (2000):

    …discrepancies in racial well-being in the United States noted by the United Nations report demand affirmative government attention. … We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups.

    Stephen Bryer (2004), on Grutter v. Bollinger’s upholding of affirmative action:

    I think it’s the most important case that I’ve participated in since I was appointed to the Supreme Court. … And if we cannot bring a degree of diversity into institutions across the United States, we will not have a country that will function as a democracy.

    John G. Roberts (2007):

    For schools that never segregated on the basis of race … or that have removed the vestiges of past segregation … the way “to achieve a system of determining admission to the public schools on a nonracial basis” … is to stop assigning students on a racial basis.

    Sonia Sotomayor (early 1990s):

    I am a product of affirmative action. I am the perfect affirmative action baby. … I was accepted rather readily at Princeton and equally as fast at Yale, but my test scores were not comparable to that of my classmates.

    Elena Kagan recused herself from the case. I still found a gem originating when she was Dean at Harvard Law School in 2003: “I’m not inclined to think an affirmative action plan is the answer.”

    Barack Obama’s Beliefs

    Solicitor General Donald Verrilli filed a brief on behalf of the current administration, essentially testifying against Abigail Fisher. Barack Obama’s personal opinion on the case is technically worthless thanks to the separation of powers. This is also the reason Supreme Court justices are appointed for life. However, the president’s opinion clearly reflects on his character as well as on legislation he may introduce in a lame duck term.

    Obama’s college roots will tell you everything you need to know about his stance on affirmative action. He told the New York Times shortly after being hired as the first black president of Harvard’s Law Review, “The fact that I’ve been elected shows a lot of progress. … I personally am interested in pushing a strong minority perspective.” He admitted in a letter dated nearly one year later, though, that he “may have benefited from the Law Review’s affirmative action program when I was selected to join the Review last year” and that he “undoubtedly benefited from affirmative action programs during [his] career.”

    Future of Fisher v. University of Texas

    You can follow the Fisher v. University of Texas case at the SCOTUS Blog. The Volokh Conspiracy is another good legal blog that will undoubtedly comment in depth about the case throughout the coming months.

    Look out for a FreedomWorks post next week explaining the trouble — both ethically and economically — with the deranged public policy called “affirmative action.”