Supreme Court Issues Narrow Holding in Affirmative Action Case

By Brian Pasquale

In Fisher v. University of Texas at Austin, the Supreme Court of the United States considered the issue of racial classifications in education.  While many were hoping for a landmark decision, ultimately the Court held that the lower court did not apply the correct standard and remanded the case for further proceedings.


The admission program at the University has evolved in recent history.  Prior to 1997 the University considered two factors when evaluating an applicant; one score that was based off of their academic performance in high school as well as their standardized test scores, and the second score based on the applicant’s race.  The United States Court of Appeals for the Fifth Circuit held this system unconstitutional in 1996 because the system did not further any compelling government interest.[i]  The University adopted a new system to comply with the Court of Appeals holding and began using a system that substituted race with what an applicant’s potential contribution to the university would be.  The University titled this program the Personal Achievement Index (“PAI”).  The PAI measures a student’s leadership and work experience, awards, extracurricular activities, community service and other circumstances that shed light on a student’s background.  In addition to the PAI being implemented, the Texas State Legislature passed the Top Ten Percent Law, which granted admission to any student who placed in the top ten percent of their graduating class.  Following the Supreme Court’s decisions in Grutter v. Bollinger[ii] and Gratz v. Bollinger[iii], a third admission program was adopted which is the one that was challenged in the case at bar.[iv]  The new program included a student’s race as a component in the PAI score, asking students to classify themselves as one of five races.  After an applicant has been scored, they are placed on a grid with the Academic Index on the x-axis and the PAI on the y-index, students who are in a cell above a certain line are admitted and students in a cell below the line are denied admission.

Petitioner applied for admission to the University in 2008 and was denied admission.  She sued the University, claiming that the University’s program violated the Equal Protection Clause.  The District Court granted summary judgment to the University.  The United States Court of Appeals for the Fifth Circuit affirmed the decision holding that Grutter required courts to give deference to the University in both the benefit that they believe having a diverse student population brings to the University as well as whether the plan was applied to achieve the goal of achieving educational benefits by increasing the diversity of the student population.


The Court began by tracing the Court’s history on the issue of racial classification in education.  In Regents of Univ of Cal. V. Bakke[v] Justice Powell set out the standard by stating “any racial classification must meet strict scrutiny, for when government decisions touch upon an individual’s race or background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling government interest.”[vi]  Of the compelling interests that Justice Powell identified included the interest in the educational benefits that flow from a diverse student body, because it is not simply above race, but about benefiting the overall educational experience.  Gratz and Grutter added to Justice Powell’s point in Bakke, by stating that the process used to achieve the racial diversity must be subject to judicial review, and race cannot be used as a factor unless the admission process can withstand strict scrutiny.

The Court then took up the present case, and began by agreeing with the District Court and Court of Appeals that the Court should defer to the University’s experience and expertise in deciding that diversity would serve the University’s educational goals.  However, while the Court agreed with the lower courts on the first issue, they disagreed with them on the second.  According to the Court, once the use of diversity to further educational goals has been held to be consistent with strict scrutiny, the University must also pass a second test.  The second test is whether the program is “narrowly tailored to achieve the goal of furthering education.”  In essence, the University must have considered other alternative admission programs that do not take race into account and determine whether they could further their stated goal.  In addition to considering the alternative programs, if a program that does not involve race would have still allowed the University to achieve its goal, then the University may not consider race.  Due to the fact that the Court of Appeals did not apply the strict scrutiny standard correctly, the Court remanded the case.

[i] Hopwood v. Texas, 78 F.2d 932, 955 (1996)

[ii] 539 U.S. 306 (2003)

[iii] 539 U.S. 244 (2003).

[iv] In Grutter, the Court permitted the University of Michigan Law School to use race as a factor in the admission process because the University was not using a “quota system” where a set number of minorities had to be admitted.  In Gratz, the Court struck down The University of Michigan’s undergraduate admission program because the University automatically added points to an applicant if they were from a certain racial minority.

[v] 438 U.S. 305 (1978) (opinion of Powell. J)

[vi] Id. at 229

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