June 28, 2013

Fisher v. University of Texas – A student commentary on affirmative action

By Stella Hartono

By Andrew M. Harrison, Stella P. Hartono, Carl T. Gustafson

The Supreme Court case of Fisher v. University of Texas concerns the question of whether the race-based, affirmative action undergraduate admission policies of the University are constitutional. This question was raised by a former undergraduate applicant in the specific context of existing Supreme Court rulings and precedent.

On June 24, 2013, in this case, the Supreme Court ruled in a 7-1 decision to vacate (make void) and remand (send back) the ruling of the Fifth Circuit Court of Appeals. Thus, this case will be returned to the Fifth Circuit Court—which represents parts of Texas, Louisiana, and Mississippi—for another decision. Justice Elena Kagan, former US Solicitor General and prior participant in this case, recused herself from participation and vote.

As indicated by the Supreme Court naming convention of petitioner v. respondent, Abigail Fisher petitioned this case to the Supreme Court after losing a decision in the Fifth Circuit Court of Appeals to the University of Texas at Austin in 2011. In this case, the Fifth Circuit Court upheld a prior decision by a lower US District Court from 2009, which also ruled in favor of the University of Texas. The Supreme Court agreed to hear this appeal in 2012.

In short, the implications of this ruling are not entirely clear. Although the Fifth Circuit Court must reconsider this case, the Supreme Court issued a lengthy opinion (1). According to emerging summaries (2-4), this opinion upholds decisions made by the Supreme Court in its two most recent and landmark cases on the subject of affirmative action: Grutter v. Bollinger and Gratz v. Bollinger. In both cases, then-president Lee Bollinger served as respondent on behalf of the University of Michigan. Both cases were decided in 2003 and largely upheld the concept of race-based affirmative action. In particular, consideration of race as a factor in the education admissions process was ruled constitutional. However, the use of explicit quota systems was found to be unconstitutional.

These two cases were an update of the 1978 Supreme Court ruling in Regents of the University of California v. Bakke. In this case, the justification for race-based affirmative action was firmly established on the basis of the 14th Amendment to the US Constitution. Along with the 13th and 15th Amendments—which outlawed slavery and guaranteed the right to vote—this post-Civil War, Reconstruction Era amendment ensured citizenship, due process, and equal protection through a series of clauses. In particular, the Equal Protection Clause of the 14th Amendment ("no state shall…deny to any person within its jurisdiction the equal protection of the laws”) was used as the basis to justify race-based affirmative action in Regents v Bakke. As upheld in later cases, the explicit quota system was found to be unconstitutional.

In response to this latest ruling, the Association of American Medical Colleges (AAMC)—which is responsible for the MCAT, medical school application system (AMCAS), and medical residency application system (ERAS)—released a report stating they are “pleased that the Supreme Court continues to recognize the educational benefits of diversity and the appropriateness of individualized, holistic review in admissions” (5). However, the precise implications of this decision remain unclear.

As for our opinion, we invite you to attend the first Office for Diversity in Education Diversity Dialog on July 24, 2013, at noon in Leighton Auditorium (Siebens building). Andrew Harrison will discuss his thoughts during this panel discussion, along with more qualified participants, including Dr. Peter Amadio, Dr. Eddie Greene, Dr. Jim Maher, and Jill Smith, JD. This event will be facilitated by Barbara Porter. We hope to see all readers of the Diversity in Education Blog in attendance!

To end on a historical note, Allan P. Bakke, respondent in Regents v. Bakke, filed his original case after being denied admissions to the medical school at the University of California at Davis on the basis of his age, which was 33. After winning his Supreme Court case, Allan Bakke went on to receive a Doctor of Medicine degree from the University of California at Davis and complete residency training in anesthesiology at Mayo Clinic in Rochester, MN (6). Dr. Bakke joined the staff of Olmsted Medical Center in 1986 (7, 8). He recently retired, but continues to reside in the Rochester area (personal communication).


(1)  Supreme Court ruling: Fisher v. University of Texas

(2)  Justices Step Up Scrutiny of Race in College Entry. The New York Times. 06/24/2013.

(3)  Justices Take Pass On Racial Preference. The Wall Street Journal. 06/24/2013.

(4)  Fisher v. University of Texas at Austin. SCOTUSblog.

(5)  AAMC Statement on the Supreme Court Ruling in Fisher v. University of Texas at Austin. 06/24/2013.

(6)  Subject of Key Decision, Allan Bakke Graduates. Sarasota Herald-Tribune. 06/05/1982.

(7)  Plaintiff in a Landmark Case Joins Staff of Medical Group. The New York Times. 11/02/1986.

(8)  Doctor is Mum about Reverse Discrimination Suit. Deseret News. 06/26/1988.

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