The case, Fisher v. University of Texas, began in 2008 when its namesake, Abigail Fisher, applied to the University of Texas at Austin. After the university denied her admission, she sued and argued that her race—Fisher is white—played a role, violating the Fourteenth Amendment’s Equal Protection Clause. In the modern era, the Supreme Court has generally wielded that clause to quash racially discriminatory laws. The Court upheld affirmative-action programs in the 1970s.
The university developed its current program after the Court upheld a Michigan law school’s “holistic” admissions policy, which used race as one factor among many to select applicants, in the 2003 case Grutter v. Bollinger. Most of UT Austin’s incoming students are chosen through the Top Ten Percent Plan, which reserves 75 percent of available seats for students in the highest 10 percent of each student’s high school class. The remaining 25 percent of incoming students are chosen through a complex process that involves weighing each student’s academic performance and “personal achievement scores.” One of the many subfactors of those scores is the applicant’s race.
Fisher did not rank among the top 10 percent of her graduating high-school class and the university denied her application during its holistic review. Her case reached the Supreme Court for the first time in 2013. Instead of a landmark ruling on affirmative action, however, the Court ruled 7-1 to send the case back to the Fifth Circuit Court of Appeals to reassess UT Austin’s program under strict scrutiny. The Fifth Circuit upheld the program once again in 2014, and last year Fisher asked the justices to reconsider it once more. They granted her request last fall.
Justice Antonin Scalia’s death in February raised the specter of 4-4 deadlocks in a number of high-profile cases for the term, and led to tied decisions on public-employee unions and the Obama administration’s immigration orders. But because Justice Elena Kagan had already recused herself—she filed an amicus brief on the case as solicitor general in 2012—Fisher couldn’t be one of those deadlocked cases.
Under the Court’s equal-protection jurisprudence, racial discrimination—no matter its intent—is subject to what the justices called “strict scrutiny,” the most stringent level of judicial review. Generally speaking, a state must prove it has a vital interest in the specific goal, such as national security, and that the law or policy achieves that goal in the least obtrusive way possible.
In his dissent, Alito argued the university fell short of those requirements. He criticized the university’s justifications as “shifting, unpersuasive, and, at times, less than candid.” The Court’s previous ruling in Fisher I demanded the highest possible level of judicial scrutiny for the admissions plan—a rigorous undertaking the majority failed to accomplish in Fisher II, he argued.