Professors explain potential outcomes of Fisher v. UT

Matthew Adams

Although Abigail Fisher v. University of Texas will be heard for a second time on Dec. 9, the US Supreme Court has addressed the issue of affirmative action many times before.   

Fisher, a white applicant, was not admitted to UT in 2008 and is suing the University because she claims she was denied based on her race. The court has previously heard four other cases on the topic, none of which have yet to set the standard for affirmative action policies. 

In 1978, the Regents of the University of California v. Bakke addressed the issue of reserving spots for minority students. At the University of California at Davis School of Medicine, 16 of the 100 seats for students were reserved for minority students. Allan Bakke, a white applicant, was denied admission twice although his GPA, MCAT score and benchmark scores were higher than the minority students.

Justice Lewis Franklin Powell determined California’s use of racial quotas violated the Constitution’s Equal Protection Clause, forbidding a state from denying “any person with its jurisdiction the equal protection of the law” and said the California System “must be rejected … as racially invalid.”

Following the Supreme Court ruling that declared affirmative action unconstitutional in 1996’s Hopwood v. Texas, the Texas Legislature created the Top 10 Percent Law. This law, which originally admitted the top 10 percent of high school students in each class, now fluctuates between 7 and 8 percent
at UT.

In 2003, the court heard two cases from the University of Michigan on the topic of affirmative action. One case, Grutter v. Bollinger, looked at the law school using race as an admissions factor, while Gratz v. Bollinger addressed a point system explicitly awarding points to minority students in undergraduate admissions. In Grutter, the court declared the law school’s procedure was constitutional. In Granz, the court ruled Michigan’s undergraduate system was found unconstitutional.  

A brief filed by the University of Michigan for the upcoming Fisher case argues that race as an admissions factor plays a crucial role for the institution.

“Admissions officers should be able to consider race in some circumstances in order to be attentive to the distinctive characteristics of individual applicants,” the Michigan brief said. “Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.’”

Richard Lempert, a professor at the University of Michigan School of Law who filed a brief supporting UT, said while it is hard to predict how Justice Anthony Kennedy will vote, there is a wrinkle in this case after Justice Elena Kagan recused herself in Fisher I.

“From a point of view of advocates of affirmative action, its quite unfortunate,” Lempert said. “As dean of Harvard Law School, she’s the one person on the court who could talk to the other justices about what affirmative action is and what it looks like in the educational process.”

UT law professor Lino Graglia said when the case is heard again, what it will come to is how Kennedy votes because he has swayed different ways before.

“You have four justices, who very predictably, will vote to uphold affirmative action,” Graglia said. “There are four others who are almost just as predictable.”

The biggest question that arises is how Kennedy will vote, and Graglia said he expects Kennedy to vote affirmative action unconstitutional. 

“In other race cases, [Kennedy] is not as strict as [Antonin] Scalia or [Clarence] Thomas … but he has generally been tough on race discrimination,” Graglia said. “A lot of times these cases today come down to how Kennedy votes, which is not entirely predictable.”