Discrimination Law Case Note: Fisher v University of Texas as Austin

In a case which highlights the debate about the merits of affirmative action programs, the Supreme Court has made an historic decision which will determine the legality and future direction of affirmative action programs around the country although it must be noted that the court remanded much of the substantive elements of the decision to the lower courts for the completion of the determination.

Basically, the University of Texas at Austin had implemented a broad and deep affirmative action program in relation to its admissions policy which meant that the race of an applicant was one of the factors in determining whether an applicant would be granted admission to the university. In fact, the university had adopted the affirmative action program after a decision in the Supreme Court known as Grutter v. Bollinger which allowed the incorporation of race as a factor in the admissions policies of universities. The person that had filed the initial application was not from a racial minority but was denied entry into the university and as a result sued the officials of the school. The cause of action cited by the plaintiff was the equal protection of races clause of the Constitution. Both of the lower courts which heard the matter found in favour of the university’s admission plan.

The Supreme Court’s take on this decision was somewhat complicated. Its view was that the second court to hear the matter had wrongfully affirmed the trial court because it incorrectly applied the necessary standard of proof which had been articulated in previous case law. One thing that the court appeared to emphasize was that there would usually be a need to show that there was an educational benefit from diversity in education including diversity on the basis of ethnic origin. The high standard that such university admission programs need to be held to ultimately flows from the text of the constitution which allows judicial review of such programs under the fourteenth amendment but means that this review must be at the highest level of probity.

The court also appeared to accept that it is necessary to allow a university to make its own judgment about whether diversity is essential to the educational mission of the organisation. A hole in the lower courts decision appeared to be that there was not a sufficient connection between the educational mission of the university and the need for the program of affirmative action. The court then stated that it was essential that the university maintained at the core of the admissions process that each applicant is assessed for their own merits as an individual and the judiciary must ensure that the this is the legally condoned path. The Supreme Court therefore held that the lower courts had examined the case against the wrong standard and ordered that these courts reexamine the case against the standard articulated by the court in the case. The court referred to an extended analysis of the relevant case law in support of its decision.

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