On June 23, 2016, the Supreme Court of the United States ruled that the race-conscious admission program that a public university used for undergraduate admissions was lawful under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. In a 4–3 ruling, the Court held that the university’s program withstood strict scrutiny analysis. The three dissenting justices argued that the university failed to meet its burden to show that the admissions plan was narrowly tailored to serve compelling interests. Fisher v. University of Texas at Austin, No. 14–981, Supreme Court of the United States (June 23, 2016). 

The University’s Admissions Policy

Texas’s H.B. 588, commonly known as the Top Ten Percent Law, guarantees college admission to students who graduate from a Texas high school in the top 10 percent of their class. The University of Texas at Austin fills a significant majority of its class through the Top Ten Percent Plan and currently, up to 75 percent of the spots in the freshman class are filled through the plan. The remaining 25 percent of the incoming class is admitted based on a combination of two measures: the Academic Index (AI) and Personal Achievement Index (PAI) with the race of a student being factored in as a subfactor in a student’s PAI score. 


A high school student, who was not in the top 10 percent of her class, applied for admission to the university and was rejected. She filed suit alleging that the university’s consideration of race as part of its review process disadvantaged her in violation of the Equal Protection Clause. A district court entered summary judgment in the university’s favor and the Fifth Circuit Court of Appeals affirmed. 

The Supreme Court of the United States heard the case—Fisher I—in 2013 and vacated the Fifth Circuit’s judgment finding that the appellate court had applied the wrong level of judicial scrutiny when it upheld the University of Texas at Austin’s race-conscious admissions procedure. The Supreme Court remanded the case back to the Fifth Circuit, which, once again, affirmed summary judgment in the university’s favor. The Supreme Court then agreed to hear the case a second time.

The Supreme Court’s Decision 

In a 4–3 opinion authored by Justice Kennedy (and in which Justice Kagan did not take part), the Court ruled in favor of the university. Justice Kennedy’s opinion first reviewed the controlling principles relevant to assessing the constitutionality of a public university’s affirmative action program as espoused in Fisher I requiring a university’s admissions process to withstand strict scrutiny (i.e., the government must prove that a challenged action furthers a compelling government interest and that the action is narrowly tailored to achieve that interest).

The Supreme Court rejected the student’s argument that the university had not articulated its compelling interest with sufficient clarity, that the university’s policy was not narrowly tailored, and that there were other available means of achieving the university’s interests that don’t involve race. According to the Court, the university had articulated its reasons for using race in its admissions policy, and it had met its burden of showing that its admissions policy was narrowly tailored. The Supreme Court thus affirmed the Fifth Circuit’s judgment in favor of the university.


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Ogletree Deakins is an industry leader in higher education legal practice. Our attorneys have decades of experience advising and defending public and private, religious and secular colleges, universities, and vocational schools.

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