1. Affirmative Action in
College and University
Admissions after Fisher
Forrest M. Stuart
PhD Student | Educational Leadership (Higher Education)
Clemson University

2. Research Question
• How does case law inform the admissions processes of
colleges and universities that ascribe to the educational
benefits of a diverse student body?
• Affirmative Action
• Theory of Successful Intelligence

3. Fisher v. University of Texas
133 S. Ct. 2411 (2013)
• Post Hopwood (1996): “Top Ten Percent” rule provided for automatic
admission to a public state college or university for any applicant in the top
10% of his/her high school graduating class.
• Abigail Fisher, a white female, was in top 12% and was denied admission
• Fisher sued the university and school officials, alleging that UT’s use of race
in admissions violated the Equal Protection Clause of the Fourteenth
Amendment
• District Court granted summary judgment to UT, and the Fifth Circuit Court
of Appeals affirmed.
• Fifth Circuit held Grutter required great deference to UT in both the
compelling interest of diversity’s benefits and in deciding if their
admission plan was narrowly tailored to achieve that goal.

4. Fisher v. Texas (cont.)
• U.S. Supreme Court remanded the case back to the Fifth
Circuit Court of Appeals “so that the admissions process could
be considered and judged under a correct analysis” (Fisher v. Texas
133 S. Ct. 2411; 186 L. Ed. 2d 474; 2013 U.S. LEXIS 4701, at *1).
• Note: Oral arguments before the Fifth Circuit Court of Appeals scheduled for November 13,
2013
• We are left with Grutter v. Bollinger (539 U.S. 306; 123 S. Ct. 2325)

5. Narrow Tailoring
• Grutter v. Bollinger (2003)
• Justice O’Connor provided the following guidance for a narrowly-
tailored admissions program:
• individualized evaluation;
• careful examination of race neutral alternatives before adopting a
race-conscious policy;
• avoid inflicting harm on other admission applicants;
• program must be limited in duration and subject to periodic, rigorous
review (Killenbeck, 2009, pp. 30-31).

6. Summary Points
• Narrow tailoring, not compelling interest, is the criteria under
which colleges and universities have the most difficult burden.
• Courts will NOT defer to an institution’s assertion that its
processes are narrowly tailored.
• Courts will defer to an institution’s claim that diversity is an
integral part in the institution’s educational mission
(compelling interest).

7. Implications for Admissions
• Per Grutter:
• Each applicant must be reviewed individually
• In Gratz, Chief Justice Rehnquist stated that the administrative burden of
individual review “could not salvage an otherwise unconstitutional
system” (Gratz v. Bollinger, 123 S. Ct. 2411, 2427 (2003))
• Each applicant must be compared to the applicant pool as a whole,
and not isolated and/or compared only to underrepresented
applicants
• Program must be assessed regularly to determine continued
necessity to promote the compelling interest

8. New Case
• Schuette v. Coalition to Defend Affirmative Action, 133 S. Ct. 1633
• Argued October 15, 2013
• Appeal of Coalition to Defend Affirmative Action, Integration and Immigrant
Rights and Fight for Equality By Any Means Necessary v. Regents of the Univ.
of Mich. 701 F.3d 466
• Plaintiffs, interest groups and individuals, sued defendants, state officials, including
regents, alleging that an amendment to the Michigan Constitution (“Proposition 2”)
prohibiting all sex- and race-based preferences in, inter alia, public education
violated the federal Equal Protection Clause and statutory law.
• The U.S. District Court for the District of Michigan ruled that the amendment was
constitutional. Plaintiffs appealed.
• Sixth Circuit Court of Appeals reversed District Court’s decision

9. References
Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight
for Equality By Any Means Necessary v. Regents of the Univ. of Michigan, 701
F.3d 466 (2012).
Fisher v. University of Texas at Austin, 133 U.S. 2411 (2013).
Gratz v. Bollinger, 539 U.S. 244 (2003).
Grutter v. Bollinger, 539 U.S. 306 (2003).
Hopwood v. State of Texas, 78 F.3d 932 (1996).
Killenbeck, A. M. (2009). Bakke, with teeth?: The implications of Grutter v. Bollinger
in an outcomes-based world. Journal of College and University Law, 36(1), 1-61.