U.S. Supreme Court Hears Arguments in Affirmative Action Case Subject of Volume 86 Recent Development


On Oct. 10, the United States Supreme Court heard oral arguments in Fisher v. University of Texas at Austin, an affirmative action case out of the United States Court of Appeals for the Fifth Circuit that was the the subject of a Recent Development published in the Review last June. As the SCOTUSBlog noted, the Court will once again address the issue of affirmative action in higher education admission, specifically whether the Fifth Circuit properly interpreted the Equal Protection Clause and the Court's decision in Grutter v. Bollinger with regard to the university's use of race as a factor in its undergraduate admissions.[1. Fisher v. University of Texas at Austin, SCOTUSBlog, http://www.scotusblog.com/case-files/cases/fisher-v-university-of-texas-at-austin/ (last visited Oct. 9, 2012)]

Grutter v. Bollinger was a landmark case in which the Court upheld the affirmative action admissions policy of the University of Michigan Law School, holding that the school could pursue a "critical mass" of minority students provided that its admissions process weighed each applicant individually, rather than employing a quota system.[2. 539 U.S. 306, 308-09 (2003).]

Fisher was the subject of a Recent Development published in the Tulane Law Review penned by Articles Editor Kathleen McNearney. As McNearney explained in her piece, previous Supreme Court jurisprudence endorsed diversity as a compelling state interest and gave deference to schools to define and pursue critical mass. [2. Kathleen McNearney, Fisher v. University of Texas at Austin: The Fifth Circuit Questions Judicial Deference to Race-Conscious Admissions Policies in Higher Education, 86 Tul. L. Rev. 1373, 1381 (2012).]

"Therefore, the noted case emphasizes that universities only need comply with Grutter's requirement to conduct an individual, holistic review of the many factors in addition to race that applicants may bring to contribute to diversity," wrote McNearney, and the University of Texas at Austin's (UT's) admissions policy does take a holistic view of each of its applicants.[3. Id.]

However, what the Supreme Court will likely examine as it handles Fisher is to what extent UT implemented its race-conscious admissions policy to pursue more diversity despite its race-neutral alternative, the state of Texas' legislation mandating guaranteed enrollment to the top ten percent of each Texas high school's graduating class, resulting in increased minority enrollment.