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SPRING 2012
Contacts:
Amy C. Foerster
Co-Chair
James A. Keller
Co-Chair
William E. Manning
Co-Chair
James D. Taylor, Jr.
Vice Chair
Will the U.S. Supreme Court Uphold
Race-Based Affirmative Action?
By Christina D. Riggs
The United States Supreme Court will evaluate the issue of race-based affirmative action in higher educa-
tion for the first time since 2003. The case, styled
Fisher v. The University of Texas at Austin
, has the
potential to eliminate any consideration of race in university admissions.
Petitioner Abigail Fisher, a white female, brought suit in 2008 after she was denied admission to the
University of Texas at Austin (UT), claiming she was discriminated against on the basis of race.
1
Fisher
challenges UT’s admission policy, which considers race among other factors, violates the Constitution’s
promise of equal protection.
UT’s Challenged Race-Conscious Admissions Policy
Like many universities, UT has continually revised its admissions program in an effort to comply with con-
trolling judicial precedent and legislative mandates.
Fisher v. Univ. of Tex. at Austin
, 631 F.3d 213, 222
(5th Cir. 2011) (“
Fisher II
”). Until 1996, UT selected candidates using two criteria: Academic Index and
race. Id. UT’s use of race as an admissions criterion ended in 1996 when the Fifth Circuit ruled race-con-
scious admissions programs unconstitutional.
Id.
at 223 (citing
Hopwood v. Texas
, 78 F.3d 932, 934–35
(5th Cir. 1996)).
In response to
Hopwood
, UT deployed a Personal Achievement Index (PAI) to be considered along with
the applicant’s Academic Index. The PAI looked beyond test scores to identify otherwise qualified appli-
cants. Although the PAI was facially race-neutral, it was “designed in part to increase minority enroll-
Highlights
Higher Education
Higher
Education
Practice
The Newsletter of the Higher Education Practice
Contents
Will the U.S. Supreme
Court Uphold
Race-Based Afrmative
Action?
pages 1 - 3
UCLA and Professor Face
Fines and Criminal
Charges in the Aftermath
of Fatal Lab Fire
pages 4 - 5
Law School Dean Subject
to Personal Liability under
Civil Rights Act of 1871
for Alleged Political
Discrimination in Faculty
Hiring
page 5 - 6
Tax-Exempt Bonds Have
Been Issued, Now What?
page 6 - 9
Understanding and
Avoiding Pitfalls
Surrounding Research
Misconduct
pages 9 - 11
Recent Decision
Underscores Importance
for Schools to Secure
Related Internet Domain
Names
pages 12 - 13
December 2011 FERPA
Revisions
pages 13 - 14
1 In the lower courts, Fisher was joined by plaintiff Rachel Multer Michalewicz, another white female who was denied undergraduate admission
to UT. Ms. Michalewicz did not join in Fisher’s petition for certiorari.
