Fisher v. UT Austin

EJS Applauds Supreme Court Decision in Fisher Upholding Race-Conscious Admissions Policy

(June 23, 2016) — The Equal Justice Society applauds today’s decision by the Supreme Court in Fisher v. University of Texas at Austin upholding the university’s race-conscious admissions policy.

In a 4-3 decision, the Court held that carefully crafted admissions policies that consider racial diversity as one factor in creating a well-rounded student body are constitutional under the Equal Protection Clause.

The Supreme Court handed down its decision in Fisher on the 13th anniversary of its decision in another landmark case, Grutter v. Bollinger (June 23, 2003), which upheld the University of Michigan Law School’s race-conscious admissions policy.


NOVEMBER 2015: Amicus brief in Fisher v. University of Texas at Austin says UT admissions policy must be allowed to consider race in order to promote equal educational opportunity for all students

OAKLAND, Calif. (Nov. 2, 2015) – The holistic admissions policy at the University of Texas at Austin must continue to consider race, or the “educational experience of all students on campus will be diminished,” stated 35 of the country’s most prominent social scientists in an amicus brief filed today with the U.S. Supreme Court.

Considering race within a broader and holistic admissions policy is the only effective and efficient way for UT Austin to promote equal educational opportunity for all students, says the brief.

The brief (PDF) was filed as the Supreme Court again considers Fisher v. University of Texas at Austin, a complaint by Abigail Fisher against the University of Texas at Austin claiming that she was not accepted into that institution because she is white.

The Supreme Court’s second look at this case comes after the 5th U.S. Circuit Court of Appeals again ruled in favor of UT Austin’s admissions policy.

“In this brief, we carefully analyze and demonstrate through social science how racial bias operates in the 21st century,” said Dr. Linda R. Tropp, Professor of Social Psychology in the Department of Psychological and Brain Sciences at the University of Massachusetts Amherst, one of the amici. “We also emphasize the measurable benefit of diversity in education, the workplace, and in our social institutions.”

The social scientists filed the brief with legal counsel Eva Paterson and Allison S. Elgart of the Equal Justice Society; a team of attorneys from Wilson Sonsini Goodrich & Rosati that included David J. Berger, Lisa A. Davis, Luke A. Liss, and David A. Brown; and john a. powell and Stephen Menendian of the Haas Institute for a Fair and Inclusive Society at the University of California, Berkeley. The Equal Justice Society legal team also included Christopher Bridges, Alynia Phillips, and Kyle Kate Dudley.

UT Austin’s admissions approach is both necessary and narrowly tailored

UT’s hybrid approach to admissions is both necessary and narrowly tailored to achieve the compelling government interest of obtaining true diversity throughout higher education, states the brief. The approach utilizes the race-neutral Top Ten Percent Plan (TTPP) in addition to the race-conscious individualized “holistic” review process. This hybrid approach is necessary because the TTPP is limited in its ability to generate student body diversity due to the effects of uneven distribution of educational opportunity across the state of Texas and the United States. The individualized review process, which considers race among many other factors, augments the shortcomings of the TTPP, which looks at only one aspect of each candidate–class rank.

The brief also highlights the extreme degree of persistent racial segregation and isolation in Texas schools. The TTPP functions in large part by channeling this underlying inter-district segregation into UT’s admitted first-year class. However, this segregation also excludes far too many Texas students from educational opportunity and quality K-12 education. The brief ties the necessity of the holistic admissions plan to the underlying realities of racial segregation throughout the state.

“This brief is unique in blending both social science and mapping analysis on how inter-district segregation generates educational inequality in the K-12 system with impacts on university admissions,” says Stephen Menendian, co-author of the brief. “We also have included deep and evidence-based analysis of how the holistic admissions plan generates greater diversity in enrollment.”

Supreme Court should reaffirm principles laid out in Grutter

By challenging UT Austin’s admissions policy, the Fisher case attacks the Supreme Court’s bedrock constitutional holding that the educational benefits of a diverse student body are a compelling interest that colleges and universities may pursue through narrowly tailored, equal opportunity policies.

“Our country’s future is at stake,” said Eva Paterson of the Equal Justice Society. “A desegregated, well-educated generation of Americans is critical to our nation’s success. To accomplish that goal, the Supreme Court should reaffirm the principles set by its 2003 decision in Grutter v. Bollinger, which upheld a race-conscious admissions policy at the University of Michigan law school and broadly affirmed the educational importance of diversity.”

In Grutter, the Supreme Court recognized that promoting diversity in higher education is a “compelling governmental interest” and required that race-conscious admissions policies be “narrowly tailored.”

UT’s holistic admissions policy is narrowly designed to consider race as only one of many factors when evaluating a student’s personal and life experiences, preserving individual assessment. But by including race, the policy accounts for circumstances in Texas resulting in structural barriers, racial residential segregation, and disparate educational opportunities for many Texas students.

Viewing racial discrimination through a social science lens

Through their brief filed today, the amici share with the Justices research that views racial discrimination through the lens of social science, as was done during Fisher’s first trip to the high court. (The authors jointly submitted an amicus brief in the first Fisher case on behalf of 13 of the nation’s leading social scientists.)

“The Supreme Court has long recognized the importance of social science when considering critical public policy issues, particularly involving racial and other forms of discrimination,” said David J. Berger, a partner at Wilson Sonsini Goodrich & Rosati. “In Brown v. Board of Education, the court relied on data presented by more than 30 social scientists affirming the harmful effects of segregation on blacks and whites, offered through the arguments and brief from the NAACP Legal Defense Fund.”

The Court also considered social science findings in its Grutter v. Bollinger decision upholding the equal opportunity admissions of the University of Michigan Law School.

Oral argument in this case is currently scheduled for December 9, 2015.


The Equal Justice Society (http://equaljusticesociety.org) is transforming the nation’s consciousness on race through law, social science, and the arts. Led by President Eva Paterson, our legal strategy aims to broaden conceptions of present-day discrimination to include unconscious and structural bias by using social science, structural analysis, and real-life experience. Currently, EJS targets its advocacy efforts on school discipline, special education, and the school-to-prison pipeline, race-conscious remedies, and inequities in the criminal justice system. The Oakland, Calif.-based nonprofit also engages the arts and artists in creating work and performances that allow wider audiences to understand social justice issues and struggles.

The Haas Institute for a Fair and Inclusive Society (http://diversity.berkeley.edu/haas-institute) brings together researchers, community stakeholders, policymakers, and communicators to identify and challenge the barriers to an inclusive, just, and sustainable society and create transformative change. The Institute serves as a national hub of a vibrant network of researchers and community partners and takes a leadership role in translating, communicating, and facilitating research, policy and strategic engagement. The Haas Institute advances research and policy related to marginalized people while essentially touching all who benefit from a truly diverse, fair, and inclusive society.

For more than 50 years, Wilson Sonsini Goodrich & Rosati (http://wsgr.com) has offered a broad range of services and legal disciplines focused on serving the principal challenges faced by the management and boards of directors of business enterprises. The firm is nationally recognized as a leader in the fields of corporate governance and finance, mergers and acquisitions, private equity, securities litigation, employment law, intellectual property, and antitrust, among many other areas of law.

EJS’S PREVIOUS WORK ON FISHER

On June 24, 2013, the Supreme Court issued its ruling in the Fisher case.

In a (7-1) decision authored by Justice Anthony Kennedy, the U.S. Supreme Court reaffirmed that universities may consider racial and ethnic diversity as one factor among many in a carefully crafted admissions policy.

Writing for the majority, Justice Kennedy wrote that “the attainment of a diverse student body…serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.”

The Court determined, however, that the 5th Circuit Court of Appeals did not sufficiently address the issue of strict scrutiny when it affirmed the district court’s ruling in favor the University of Texas (UT). Consequently, the Court remanded the case back to the 5th Circuit to reconsider the evidence under that standard.

Read more

Social Scientists File Brief with U.S. Supreme Court
Highlighting Evidence That Diverse College Environments
Help All Students, Create Better Workforce

SAN FRANCISCO (Aug. 13, 2012) – A group of social scientists today filed a legal brief with the U.S. Supreme Court with research offering a deeper understanding of how a diverse educational environment benefits White students as well as students of color, and why diversity benefits society as a whole, even more than previously understood.

The brief cites studies, provided to the Supreme Court for the first time, showing that race-conscious admissions policies like that used by the University of Texas at Austin result in a more diverse student body, which is essential to produce leaders able to compete in the 21st century global marketplace. The brief also explains how structural barriers inhibit educational opportunity.

The Equal Justice Society, the law firm of Wilson Sonsini Goodrich & Rosati, and the Haas Diversity Research Center at the University of California, Berkeley, wrote the amicus (“friend of the court”) brief on behalf of 13 of the nation’s leading social scientists in the case of Abigail Fisher v. University of Texas at Austin.

Dr. Victoria Plaut, Professor of Law and Social Science at the University of California, Berkeley, led the coordination of social scientists, and Dr. Plaut and students from the Berkeley Law Culture, Diversity & Intergroup Relations Lab helped compile the research for the brief. Nicole Arlette Hirsch, a doctoral candidate in the Department of Sociology at Harvard University, also assisted with the brief.

The brief provides examples of the most recent social science research, offering a deeper understanding of why diversity is even more crucial to academic achievement and civic engagement than previously understood. Research presented for the first time to the Supreme Court shows how diversity improves academic performance, reduces prejudice, lowers stress and psychological barriers, and has broad positive effects on workforce development.

This is not the first time a brief has employed social science in a Supreme Court case. In its historic Brown v. Board of Education school desegregation ruling, the Supreme Court relied on data presented by more than 30 social scientists affirming the harmful effects of segregation on Blacks and Whites, offered through the arguments and brief from the NAACP Legal Defense Fund. The Court also considered social science findings in its Grutter v. Bollinger decision upholding the equal opportunity admissions of the University of Michigan Law School.

Social Science, Better Students, and American Achievement

Among the research demonstrating how diversity improves workforce development, one study shows that diversity leads to innovation because groups collaborate more when they recognize that alternative perspectives exist, leading to novel insights and solutions. This was among the findings in a study led by Dr. Katherine W. Phillips, the Paul Calello Professor of Leadership and Ethics at Columbia Business School. The inclusion of diverse viewpoints in decision-making leads to creativity and efficiency in how group members work together.

Another study reveals that when people of color are part of a multiracial group, it can lead to divergent thinking, more creativity, and more accurate judgments. Diverse environments can also lead White individuals to “exhibit more thorough information processing,” found a study led by Dr. Samuel R. Sommers, Associate Professor of Psychology at Tufts University.

Research by Dr. Patricia Gurin at the University of Michigan concludes that extensive and meaningful interracial interaction enhances education outcomes. Her study showed higher levels of intellectual engagement and academic skills for White, Black, Latino, and Asian students, based on data collected from more than 11,000 students across 184 institutions.

The brief also cites an analysis of more than 200 studies revealing that continued contact with people from other ethnic backgrounds reduces prejudice. The analysis by Dr. Thomas F. Pettigrew and Dr. Linda R. Tropp indicates that interracial interactions over time reduce anxiety and other negative emotional responses.

UT’s Admissions Policy Meets Supreme Court’s ‘Narrowly Tailored’ Criteria

In its 2003 decision in Grutter v. Bollinger, the Supreme Court recognized that promoting diversity in higher education is a “compelling governmental interest.” In Grutter, the Court required that race-conscious admissions policies be “narrowly tailored.”

UT’s holistic admissions policy is narrowly designed to consider race as only one of many factors when evaluating a student’s personal and life experiences, preserving individual assessment. But by including race, the policy accounts for circumstances in Texas resulting in structural barriers, racial residential segregation, and disparate educational opportunities for many Texas students.

Fisher’s Road to the Supreme Court

The Fisher case was brought by a White student who challenges her denial of admission to UT in 2008 under an admissions policy that considers many different criteria, including: leadership qualities, extracurricular activities, awards, work experience, community service, family and school socio-economic status, and race. UT’s policy takes into consideration the race environment background of any applicant, including a White student, based on his or her unique life experience.

After Fisher filed her lawsuit in 2008, a federal judge ruled against her in 2009. On appeal, the U.S. Court of Appeals for the 5th Circuit last year unanimously ruled against Fisher and upheld the constitutionality of UT’s admissions policy, saying it is consistent with the Supreme Court’s Grutter decision that diversity is a compelling interest for public universities and that race can be used as a factor in admissions. Fisher appealed to the Supreme Court, which will hear arguments in October 2012.

By challenging UT’s admissions policy, the Fisher case attacks the Supreme Court’s bedrock constitutional holding that the educational benefits of a diverse student body are a compelling interest that colleges and universities may pursue through narrowly tailored, equal opportunity policies.

The brief was submitted by legal counsel Eva Paterson, Allison S. Elgart and Fabián Rentería of the Equal Justice Society; a team of attorneys from Wilson Sonsini Goodrich & Rosati that includes David Berger, Elizabeth Saunders, Lisa Davis, Ro Khanna, and Savith Iyengar; and john a. powell and Stephen Menendian of the Haas Diversity Research Center at the University of California, Berkeley.

Visit https://equaljusticesociety.org/fisher to download the brief, to see the complete list of the social scientists who signed the brief, and to learn more about the case.