Fisher v.

Texas A Case for Affirmative Action Logan Franklin Background In 2008, Abigail Noel Fisher was denied admission to the 2008 freshman class at the University of Texas-Austin (UT-Austin). Fisherbeing of Caucasian descentfiled suit against the university claiming that she had been discriminated against on the basis of her race in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. UT-Austin, she claimed, had implemented a race-based admissions policy. This policy, she alleges, violates the Grutter v. Bollinger ruling which requires the university to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity (2003). At the time of her application to UT-Austin, Fisher had maintained a 5.11 GPA on a weighted 6.0 scale and a 3.59 GPA on a 4.0 scale at Stephen F. Austin High School. Fishers class rank was 82 out of 674 students, putting her in about the top 12% of her class. The state of Texas guarantees automatic acceptance to UT-Austin to all students who finish in the top 10% of their high school graduating class. Because Fisher did not rank in the top 10% of her class, she did not qualify for automatic admission to UT-Austin. This means that she would be considered by other criteria. She was involved in multiple extra-curricular activities, including: orchestra, math competition, soccer, bowling, and volunteer work. She also attained an 1180 on the SAT. Around March 25, 2008, Fisher received a letter from UT-Austin informing her that she had not been accepted for admission, signed by Bruce Walker, Vice Provost and Director of Admissions. Fisher was offered admission to the Coordinated Admission Program (CAP), allowing her to

transfer to UT-Austin after finishing 30 transferrable hours of credit at a participating UT campus, as long as she maintained a 3.2 GPA. (Information gathered from Plaintiffs Amended Complaint, April 17, 2008) Fisher was accepted to two other universities where she received academic scholarships. She was admitted to Louisiana State University, as well as Baylor University. Fisher would go on to attend Louisiana State University and receive a Bachelors Degree, and now has a job as a financial analyst for ACS XEROX Company, a Fortune 500 company. Plaintiff Complaint Summary The Plaintiff, Fisher, claimed three counts against UT-Austin. However, in this paper only one count will be considered: Violation of Fourteenth Amendment to the United States Constitution. In the counts, the Plaintiff posits that in order to survive constitutional scrutiny, racial classifications must be narrowly tailored to further compelling government interests. Narrow tailoring requires serious, good faith consideration of workable race-neutral alternatives that will achieve the compelling government interest. The Plaintiff claims that UT-Austin failed to consider race-neutral alternatives, like the Top 10 Percent Law, before reimplementing race-based criteria for admission after the Grutter v. Bollinger. They claim that the university itself lauded the Top 10 Percent Law for its ability to increase enrollment of minority students to levels previously reached during affirmative action (prior to the Hopwood ruling). Defendant Answer Summary In short, the DefendantsUT-Austinagreed with the interpretation of the law, but deny that their actions were in violation. The Defendants take issue with the notion that the Top 10 Percent Law was very successful in promoting diversity in UT-Austins undergraduate student

body (Plaintiff Amended Complaint, April 17, 2008, Paragraph 57). Defendants also contend that the quotes provided by the Plaintiff that show UT-Austin employees calling the Top 10 Percent Law a success in creating diversity are taken out of context. One particular example is a quote that is only half of the original sentence. The Plaintiffs use a quote from a January 16, 2003 press release in which UT-Austin said that the Top 10 Percent Law has effectively compensated for the loss of affirmative action, while the full quote is The University of Texas at Austin has effectively compensated for the loss of affirmative action, partly by increasing recruiting and financial aid for minority students (Paragraph 60 from Defendants Answer to Amended Complaint). The Defendants also argue that the Plaintiff fails to acknowledge changes in demographics when citing increases in minority populations at UT-Austin during the years without affirmative action1996-2003. Finally, in most instances where the Plaintiff shows examples of UT-Austin using race as a consideration for admissions, they fail to address the multitude of other criteria taken into account along with race. Position My position is that UT-Austins consideration of race in its undergraduate admissions process does not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. I come to this conclusion for two main reasons. First, the Plaintiff failed to show that the Top 10 Percent Law adequately addressed the issue of diversity. Second, the Plaintiff failed to show that race was the reason for her rejection. In the Plaintiffs argument they attempted to prove that UT-Austin did not give serious, good faith consideration of workable race-neutral alternatives to improve diversity on their campus. The Plaintiff claimed that the combination of the Top 10 Percent Law and the AI/PAI (Achievement Index/Personal Achievement Index- taking in to account test scores,

extracurricular activities, and scores on two essays among others) were enough to eventually surpass enrollment numbers of minorities achieved under the affirmative action system. They used incomplete quotes and quotes taken out of context as an attempt to show that the university lauded the progresses made without affirmative action. As contended by the Defendants, the progress was due in part to changing demographics over the years and some focus on recruiting and financial aid efforts aimed at minorities. While enrollment percentages of minorities did increase over that timeframe, it was slower than before and came after a decline in registration of minority students just after the Hopwood decision. On the other hand, the growth of minority registration has increased more steadily since the reinstatement of race considerations in 2005 (2011-2012 Statistical Handbook). Finally, the Plaintiff failed to show that race was actually a determinant in her rejection. According to an article by Nikole Hannah-Jones for the Atlantic Wire on March 18, 2013, competition was extra stiff at UT-Austin in 2008, the year Fisher applied. The Top 10 Percent Law claimed 92% of the in-state spots in the freshman class. The schools rejection rate for the remaining 841 seats was higher than Harvards. University officials claimed that even if she had received every personal achievement factor, including race, she would still have been rejected. Only 47 students with lower test scores and grades than Fisher were admitted and 42 of them were white. In addition, 168 black and Latino students whose grades were as good as or better than Fishers were also rejected. None of these facts were considered by the Plaintiff. Instead, her argument was based on the fact that she knew a few minority students who did worse on grades and test scores than she who were admitted. Additionally, the Plaintiff was not given a blanket rejection. She was offered the opportunity to attend UT-Austin her sophomore year if she completed 30 hours with a 3.2 GPA at another UT system campus. Fishers subsequent

completion of a Bachelors program at Louisiana State University followed by a financial analyst position at a Fortune 500 company indicate that she did not suffer irreparable harm as a result of the incident. The injury in this case is minor and not worth consideration. As this case has indicated, our country is about to face another big discussion on the topic of affirmative action. Decisions made on this topic will be some of the most important civil rights cases of our lifetimes, and will have an indelible impact on our careers in student affairs. I have summarized some of the facts of the case, as well as the arguments, and have given my opinion that the University of Texas-Austin did not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution for the reasons outlined above.

Word Count: 1330

References Amended Complaint (April 17, 2008) Defendants Answer to Plaintiffs Amended Complaint (May 8, 2008) United States Supreme Court Opinion, Fisher v. Texas Hannah-Jones, Nikole; Race Didnt Cost Abigail Fisher Her Spot at the University of Texas; Atlantic Wire (March 18, 2013)