The Unique Effect of Texas’ Top Ten Percent Law on Fisher v. Texas

The U.S. Supreme Court decision in Fisher v. Texas (http://www.supremecourt.gov/opinions/15pdf/14-981_4g15.pdf) (Fisher II) made it clear that race is still relevant and applicable to higher education admissions. Coincidentally, it was decided exactly 13 years after Grutter v. Bollinger; a predecessor case that also addressed race-conscious admissions in higher education. The effect of the Fisher II decision is significant for a few reasons. First, Justice Anthony Kennedy, who authored the majority opinion, resolved the case by narrowly analyzing it in relation to Abigail Fisher’s injury – the denial of her 2008 admissions application to the University of Texas at Austin (UT). Second, the Court reaffirmed that universities need not exhaust race-neutral alternatives under the Equal Protection Clause, and the evidence provided by UT supported that no workable alternatives existed in 2008. Lastly, notwithstanding UT’s “win” in this case, the Court was clear that UT must continue assessing whether race should remain a factor in its holistic process in the future.

Abigail Fisher’s contention in Fisher I and II was that her equal protection rights were violated because she was not given equal consideration with African-American and Latino/a applicants. She presumed that but for UT’s use of race in its holistic process, she would have been admitted to the university rather than being rejected. Because race was implicated in her constitutional claim, the Court applied strict scrutiny. In Fisher I(2013), the Court was dissatisfied with the U.S. Fifth Circuit Court of Appeals (Fifth Circuit) application of strict scrutiny so the case was remanded. In Fisher II, however, the Court affirmed the Fifth Circuit’s decision that UT did not violate Abigail Fisher’s constitutional rights when it considered the race of applicants, among several other factors, in its holistic admissions process. Grutter’s precedent and UT’s documented efforts were critical to the Court’s decision. Ultimately, the crux of the decision fell upon the strict scrutiny prong which requires that the use of race must be “narrowly tailored to achieve the universities permissible goals.”

The unique impact of the FisherII decision arises from UT’s “approach[] to college admissions … [as] it combines holistic review with a percentage plan.” Specifically, Texas’ percentage plan, known as the Top Ten Percent Plan, and Grutter are the reasons UT began considering race in its holistic process. The Top Ten Percent Plan is a state law that automatically admits, on average, 75% of incoming students to UT because those students graduated with a class rank in the top 10% of their class. UT’s holistic plan accounts for the remaining 25% of the university’s incoming students, and similar to the plan upheld in Grutter, it uses race only as a “factor of a factor” within the broader context of a candidate’s application.

Despite the extensive appellate record in Fisher II, including amicus briefs filed in support of both parties, the majority opinion only gave weight to evidence related to Abigail Fisher’s injury. Justice Kennedy framed the Court’s decision very narrowly, affirming that UT had satisfied its narrow tailoring burden. The Court’s decision addressed how UT's evidence did not distinguish whether students admitted under the Top Ten Percent Plan versus students admitted under the holistic plan contributed to the diverse student body at UT. Notwithstanding this “devoid … information,” UT did provide demographic data, its proposal for implementing the holistic plan which identified educational values, and numerous affidavits and declarations. By viewing Fisher’s injury in isolation, the Court determined there simply was not enough evidence to support that UT did not narrowly tailor its efforts. Therefore, it was impracticable for her claim to withstand summary judgment, which was the procedural posture of the case through the appeals process.

The Court’s decision also involved the University’s burden, or lack thereof, of having to exhaust every conceivable race-neutral alternative. Although this is not a new standard, as it was articulated in Grutter and Fisher I, the information from the appellate record was vital to this part of the analysis. For example, in support of its holding, the Court identified alternatives (i.e., three new scholarships, new regional admissions centers, an increased recruitment budget, and recruitment events) that UT tried, but proved to be unworkable during the time Abigail Fisher’s application was under review. Conversely, in his dissent, Justice Alito identified George Washington University’s decision to make the SAT an optional requirement for admissions. However, the Court did not give this race-neutral alternative any credence. Another race-neutral alternative was put forth by Fisher. She claimed that the Top Ten Percent Plan should admit more, if not all, of UT’s incoming students. This argument was also rejected as an unworkable alternative. Justice Kennedy noted that “[c]lass rank is a single metric, and like any single metric, it will capture certain types of people and miss others.” Ironically, Abigail Fisher was the type of person that was “missed” under the class rank metric that she championed as a workable alternative.

Lastly, the Court seemed to give UT a warning with respect to its continued use of its race-conscious holistic process. The Court specifically acknowledged all of the data that has been collected while Fisher’s case has been in the judicial system. Over the eight years that her case has been litigated, UT has continued to collect data and issue reports on the impact of the Top Ten Percent Plan and its overall admissions schema. Texas demographics have changed, and the University is more equipped now than it was in 2008 to assess the

“positive and negative” effect of the “affirmative-action measures it deems necessary.” Justice Alito’s dissent also bears on this point as he contends that UT’s use of demographic data equates to nothing more than “racial balancing” and that is an impermissible constitutional interest.

Even though UT was victorious in this lawsuit, the Court’s cautionary advice is foretelling of more admissions challenges. To the extent that UT continues using race as a factor in its holistic process, it should heed the warning given by the Court. The Top Ten Percent Plan will continue to admit a substantial amount of in-state students to UT. Therefore, if UT remains focused on obtaining a diverse student body perhaps it will evaluate how the Top Ten Percent Plan and its holistic process (1) create diversity by having in-state students and out-of-state students, and (2) promote racial diversity of its student body, both within and amongst groups. The evaluation of data could be one tool used to assess whether the holistic race-conscious process should continue, not only at UT, but at all universities that use race-conscious admissions.*

* In addition to the Court’s guidance, UT and other universities might consider reviewing scholarly articles that analyze race-conscious admissions processes, the Top Ten Percent Plan, or both. Two such articles include Shakira D. Pleasant, More than Just the Numbers: Fisher v. Texas and the Practical Impact of the Top Ten Percent Plan, 24 U. Mia. Bus. L. Rev. 111 (2016) available athttp://business-law-review.law.miami.edu/wp-content/uploads/2016/06/Pleasant-Final-PDF.pdf; and Vinay Harpalani, Narrowly Tailored But Broadly Compelling: Defending Race-Conscious Admissions after Fisher, 45 Seton Hall L. Rev. 761 (2015), available athttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1836224