Facts of the Case

Provided by Oyez

In 1997, the Texas legislature enacted a law requiring the University of Texas to admit all high school seniors who ranked in the top ten percent of their high school classes. After finding differences between the racial and ethnic makeup of the university's undergraduate population and the state's population, the University of Texas decided to modify its race-neutral admissions policy. The new policy continued to admit all in-state students who graduated in the top ten percent of their high school classes. For the remainder of the in-state freshman class the university would consider race as a factor in admission.


Abigail N. Fisher, a Caucasian female, applied for undergraduate admission to the University of Texas in 2008. Fisher was not in the top ten percent of her class, so she competed for admission with other non-top ten percent in-state applicants. The University of Texas denied Fisher's application.


Fisher filed suit against the university and other related defendants, claiming that the University of Texas' use of race as a consideration in admission decisions was in violation of the equal protection clause of the Fourteenth Amendment. The university argued that its use of race was a narrowly tailored means of pursuing greater diversity. The district court decided in favor of the University of Texas, and the United States Court of Appeals for the Fifth Circuit affirmed the district court's decision. Fisher appealed the appellate court's decision.


  1. Does the Equal Protection Clause of the Fourteenth Amendment permit the consideration of race in undergraduate admissions decisions?


  1. Yes, but only under a standard of strict judicial scrutiny. Justice Anthony M. Kennedy delivered the opinion for the 7-1 majority. The Supreme Court held that, in affirming the lower court's decision, the Court of Appeals did not hold the University's admission policies to a standard of strict scrutiny, so the judgment was incorrect. Based on previous judicial precedent in cases dealing with minority admissions, the Court has held that such cases are reviewable under the Fourteenth Amendment and that they must be reviewed under a standard of strict scrutiny to determine whether the policies are "precisely tailored to serve a compelling governmental interest." If the policy does not meet this standard, race may not be considered in the admissions process. The Court held that it was the duty of the reviewing court to "verify" that the University policy in question was necessary to achieve the benefits of diversity and that no race-neutral alternative would provide the same benefits. The Supreme Court held that the lower courts did not conduct a sufficient strict scrutiny examination in this case. Justice Antonin Scalia wrote a concurring opinion in which he argued that the Constitution prohibits governmental discrimination on the basis of race. However, because this case did not ask the Court to overrule precedent that allowed universities to consider diversity a compelling interest that justified race-based admission policies, he joined the majority's opinion in full. In his separate concurrence, Justice Clarence Thomas wrote that he joined the majority's opinion that the lower courts did not sufficiently apply strict scrutiny, but he also argued that the Equal Protection Clause of the Fourteenth Amendment prohibits a state's use of race as a factor in higher education admissions. He further argued that there is nothing "necessary" about the benefits that flow from racial diversity in higher education, so there in no compelling state interest to promote it. Justice Ruth Bader Ginsburg wrote a dissenting opinion in which she argued that the University's admission policy treats race as merely one factor in the overall decision to admit a student, which is permissible under previous judicial precedent. She also argued that the Equal Protection Clause does not require that state universities be blind to the history of overt discrimination and that it is preferable that they explicitly include race as a factor in admission decisions rather than attempt to obfuscate its role. Justice Elena Kagan did not participate in the discussion or decision of the case.