Supreme Court Upholds University of Texas Affirmative Action Admissions Policy

Foley Hoag, AALDEF Amicus Brief Instrumental in Reached Decision

June 29, 2016

An amicus brief filed by Foley Hoag LLP and client Asian American Legal Defense and Education Fund (AALDEF) was instrumental in the U.S. Supreme Court's decision to reject a challenge under the Equal Protection Clause to the University of Texas at Austin’s race-conscious admissions program in Fisher v. University of Texas at Austin (“Fisher II”). The 4-3 majority decision upholds UT’s freshman affirmative action admissions policy, which was in its second round of litigation before the nation’s highest court.

“This ruling relays the importance of affirmative action policies within academic institutions,” said Foley Hoag partner Hemmie Chang. “It ensures that qualified students from all backgrounds will receive an equal opportunity for higher learning.”

The brief was initially filed in November 2015 on behalf of 21 Asian American education and youth-serving groups and 44 higher education faculty and officials. The 65 groups and individuals signing on to the brief included the Asian/Asian American Faculty and Staff Association at UT-Austin and the Asian Desi Pacific Islander American Collective at UT-Austin, all opposing Abigail Fisher’s lawsuit challenging the University’s admissions policy.

Fisher’s amici maintained that the University’s use of race as a factor in admissions puts Asian Americans at a disadvantage by favoring Hispanic and African Americans, despite statistical evidence indicating Asian Americans have benefited more from the race-conscious admissions policy than Hispanic applicants.

The Fisher II majority decision emphasized the fact-specific nature of the UT admissions policy. By that policy, up to 75% of the UT freshman class is admitted using a plan under which UT guarantees admission to Texas high school students who graduate in the top 10 percent of the class. The remainder of the incoming class is admitted through a review that combines an applicant’s “Academic Index,” consisting of SAT score and high school grades, with the applicant’s “Personal Achievement Index,” which considers a number of other factors, including race.
Fisher’s equal protection challenge concerned the holistic review portion of the admissions policy, under which an applicant’s race is considered as one of several factors making up the Personal Achievement Index score.

In rejecting Fisher’s challenge, the Court articulated three controlling principles: 1) the use of race must withstand strict scrutiny; 2) if the university successfully articulates “a reasoned, principled explanation” for its policy, its conclusion that diversity serves its educational goals should be given judicial deference; and 3) the university nonetheless bears the burden of proving that “race-neutral alternatives that are both available and workable do not suffice.”

The Court concluded that the record established that “the University articulated concrete and precise goals” that mirrored the compelling interest the Court had previously approved, including the destruction of stereotypes, the promotion of cross-racial understanding, and the preparation of students for a diverse workforce.

"We are gratified the Supreme Court has recognized the ongoing relevance of race as one of several factors in the college admissions process," said Margaret Fung, executive director of AALDEF. "We are glad that Justice Kennedy recognized that the consideration of race may be beneficial to any UT-Austin applicant, including Asian American applicants and, citing AALDEF's amicus brief, noted that Fisher's assertion that the university discriminates against Asian Americans is 'entirely unsupported by evidence in the record or empirical data.'"

The Foley Hoag legal team includes partners Dean Richlin and Hemmie Chang, and associates Sarah Burg, Alice Yu and Amanda Hainsworth. The broader Asian American coalition joining AALDEF in support of UT-Austin’s individualized admissions policies includes Advancing Justice, the Coalition of Bar Associations of Color (NAPABA, the Hispanic National Bar Association, the National Bar Association, and the National Native American Bar Association), and over 160 Asian American organizations, student groups, and bar associations as well as 53 higher education faculty and officials.

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