This issue of Take 5 was written by Frank C. Morris, Jr.,
a Member of the Firm in the Labor and Employment,
Litigation, and Employee Benefits practices, in Epstein
Becker Green’s Washington, DC, office, and the Chair of
Epstein Becker Green’s Disability Law Group.
Frank C. Morris, Jr.
Member of the Firm
Washington, DC, Office
FMorris@ebglaw.com
202/861-1880
The docket for the U.S. Supreme Court’s October 2012 term already contains five
cases that could substantially impact the employment litigation landscape and employer
affirmative action and diversity efforts. This month's Take 5 will summarize these five
cases and how they may affect employers.
1. Fisher v. University of Texas1– Is Race-Based Affirmative Action
Constitutional?
On October 10, 2012, the Supreme Court heard oral arguments in a landmark case on
whether race can be considered for some college admissions programs. In 2008,
Abigail Fisher sued the University of Texas (“University”), claiming that she was denied
admission to the University because she was white. According to Ms. Fisher, there
were minority students in her class that were accepted by the University even though
they had lower grades and did not participate in as many school-related activities.
Under Texas law, Texas universities use a “Top 10 Percent” plan for admissions,
through which students in the top 10 percent of their high school graduating class are
automatically admitted to the state university of their choice. This plan, which is race-
neutral, has helped Texas universities boost racial diversity, primarily because most of
the state’s public high schools are de facto segregated by race and ethnicity. Ms.
1Fisher v. Univ. of Texas, 644 F.3d 301 (5th Cir. 2011), cert. granted, 80 U.S.L.W. 3475 (U.S. Feb. 21,
2012) (No. 11-345).
