Following Fisher: Higher Ed Community Assesses What's Next for Affirmative Action in Wake of Supreme Court's Decision to Send Fisher V. University of Texas at Austin Back to Lower Court

By Davis, Kimberly | Diverse Issues in Higher Education, July 18, 2013 | Go to article overview

Following Fisher: Higher Ed Community Assesses What's Next for Affirmative Action in Wake of Supreme Court's Decision to Send Fisher V. University of Texas at Austin Back to Lower Court


Davis, Kimberly, Diverse Issues in Higher Education


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When the U.S. Supreme Court ruled 7-1 to send Abigail Fisher's discrimination lawsuit against the University of Texas at Austin back to a lower court, the long-awaited and much-anticipated referendum on affirmative action seemingly failed to materialize.

Ever since the nation's highest court decided to hear the case in February 2012, those for and against affirmative action had been waiting for another definitive answer about the use of race in college admissions, which had been affirmed in the 2003 case, Grutter v. Bollinger.

But the June 24 ruling was more about keeping the ball in play than giving either side a victory.

Justice Anthony Kennedy, on behalf of the high court, said that the lower court did not apply "strict scrutiny" to the Texas flagship university's admissions process and that race should only be a factor in admissions when "available, workable race-neutral alternatives do not suffice" in the effort to achieve diversity.

In her dissent, Justice Ruth Bader Ginsburg wrote that Texas followed the law set by Grutter v. Bollinger, while Justice Elena Kagan recused herself, ostensibly because she had some involvement in the case while with the U.S. Justice Department.

Both sides hailed the decision as a victory, while others argued that the short opinion amounted to a "punt" by the Supreme Court.

UT-Austin President William Powers said during a press conference that the university was pleased with the ruling and that there will be no immediate impact on the holistic admissions process at the university. Dr. Kedra Ishop, vice provost and director of admissions at the university, said that they are ready to continue defending their admissions process.

"Obviously, we were eagerly anticipating probably more finality than we received," Ishop said. "But at the same time, we are eagerly looking forward to continuing to defend the case back at the Fifth Circuit and promote the [diversity] ideals of the University of Texas."

Ishop says that there is no timetable as to when the case will go back to the lower court, but it could take about a year. In the meantime, the university will continue to uphold its mission.

"The university has always felt that it is part of our mission to provide a diverse educational environment for our students," she says. "Our mission is to educate leadership for the state of Texas, the nation and beyond."

Fisher, who was denied admission to the university in 2008 and has since graduated from Louisiana State University, said during a press conference after the ruling, "I am grateful to the justices for moving the nation closer to a day when students' race isn't used at all in college admissions."

What's at stake in this case is whether race and/or ethnicity can be used as a factor in college admissions. Fisher, who is from suburban Sugarland, Texas, sued the University of Texas at Austin, claiming she was denied admission because she is White. In Texas during that year, the top 10 percent of students at all high schools in the state were granted automatic admission to the Austin campus; that policy accounted for 92 percent of all slots. The remaining 8 percent of openings were determined by a holistic review process, whereby all attributes of an applicant--including race and/or ethnicity--were considered. Fisher, who had a 3.59 GPA and a score of 1180 out of 1600 on the SAT, according to court documents, was also denied entrance to the university in this second tier, as were several Hispanic and Black students with higher test scores and GPAs than she had.

Those facts, which are undisputed in the record of the case, along with the university's contention that Fisher would not have been granted admission on the most lenient application of the admissions process, is enough to make Damon T. Hewitt confident that Fisher's case will be decided in the university's favor. …

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