Fisher v. University of Texas was a pair of U.S. Supreme Court cases testing whether UT Austin could consider race in its undergraduate admissions without violating the Fourteenth Amendment’s Equal Protection Clause. The Court reviewed the dispute twice, in 2013 and again in 2016, and ultimately upheld the university’s program in a 4-3 decision. That holding stood for seven years before the Court reversed course in 2023 and declared all race-conscious college admissions unconstitutional.
Who Abigail Fisher Was and What She Challenged
Abigail Fisher was a white Texas applicant denied admission to UT Austin’s fall 2008 entering class. She sued the university, arguing that its consideration of race in the admissions process disadvantaged her because of her ancestry and violated the Equal Protection Clause of the Fourteenth Amendment, which forbids any state from denying “any person within its jurisdiction the equal protection of the laws.”1Congress.gov. U.S. Constitution – Fourteenth Amendment
Fisher did not wait for the litigation to resolve. She enrolled at Louisiana State University, graduated, and began working in finance in Austin while her case continued through the courts.
How UT Austin Admitted Students
UT Austin filled its freshman class through two tracks. The first was the Top Ten Percent Plan, created by the Texas legislature in 1997 through House Bill 588, which guaranteed automatic admission to any Texas public university for students who graduated in the top ten percent of their high school class. That track filled roughly 75 percent of UT Austin’s entering class.
The remaining quarter of seats went through holistic review. Each applicant received two scores: an Academic Index based on class rank and test scores, and a Personal Achievement Index drawn from essays, leadership, extracurricular activities, work experience, and personal circumstances such as socioeconomic background or family responsibilities. Race could factor into the Personal Achievement Index but carried no specific numerical value. The district court in Fisher’s own case described race as “a factor of a factor of a factor of a factor” in the overall calculus. That holistic component, added after the Supreme Court’s 2003 decision in Grutter v. Bollinger endorsed limited race-conscious admissions, was what Fisher challenged.
The Constitutional Question
Any government policy that classifies people by race triggers strict scrutiny, the most demanding form of judicial review.2Legal Information Institute. Race-Based Classifications – Overview To survive it, the government must show two things: that the racial classification serves a compelling interest, and that the policy is narrowly tailored, meaning it uses race no more than necessary and that no workable race-neutral alternative could achieve the same result.
The Supreme Court had already recognized in Grutter that the educational benefits of student body diversity qualify as a compelling interest.3Cornell Law Institute. Fisher v. University of Texas at Austin The harder question in Fisher was narrow tailoring: whether UT Austin had seriously considered race-neutral alternatives, and whether it could prove with real evidence that considering race was necessary to reach the diversity its educational mission required. Fisher’s side argued that the Equal Protection Clause protects individuals rather than groups, and that even well-intentioned racial preferences violate it. The university argued that race had to remain one factor among many to assemble a genuinely diverse student body.
Fisher I (2013): The Case Sent Back
The first time the Supreme Court heard the case, it did not rule on whether UT Austin’s program was constitutional. In a 7-1 decision, the Court found that the Fifth Circuit had been too deferential to the university, effectively taking UT Austin at its word rather than demanding proof that its program was narrowly tailored.4Justia U.S. Supreme Court Center. Fisher v. University of Texas
Justice Kennedy, writing for the majority, vacated the appellate ruling and sent the case back with instructions to apply strict scrutiny properly. The university would have to demonstrate with actual evidence that race-neutral alternatives were insufficient and that its holistic review was the only workable path to the diversity it sought.3Cornell Law Institute. Fisher v. University of Texas at Austin Fisher I did not change the law of race-conscious admissions. It told the lower courts to apply the existing law with genuine rigor.
Fisher II (2016): The Program Upheld
When the case returned in 2016, the Court ruled 4-3 that UT Austin’s admissions program satisfied strict scrutiny and was constitutional.5Justia U.S. Supreme Court Center. Fisher v. University of Texas at Austin Justice Kennedy wrote the majority opinion, joined by Justices Ginsburg, Breyer, and Sotomayor. It was the first time in Kennedy’s career that he voted to uphold a race-conscious admissions program.
Kennedy’s opinion found that UT Austin had identified concrete goals beyond generic appeals to diversity: ending stereotypes, promoting cross-racial understanding, preparing students for a diverse workforce, and cultivating leaders seen as legitimate by a broad citizenry. The university supported those goals with data showing that the Top Ten Percent Plan alone had not produced classroom-level diversity. Many courses had zero or one minority student enrolled, even though overall enrollment numbers looked healthy on paper.
On narrow tailoring, the majority pointed out that race played a role only in the roughly 25 percent of seats filled through holistic review, and even there it was one consideration among many. Kennedy called this limited scope “a hallmark of narrow tailoring, not evidence of unconstitutionality.”5Justia U.S. Supreme Court Center. Fisher v. University of Texas at Austin The majority also imposed a forward-looking duty on the university to periodically reassess whether its race-conscious program was still necessary and to adjust or end it if race-neutral methods became sufficient.
The Dissents
Justice Alito wrote the principal dissent, joined by Chief Justice Roberts and Justice Thomas. Alito argued that UT Austin had never identified its interests with enough specificity for a court to evaluate whether the program was actually working. Invoking “the educational benefits of diversity” without measurable benchmarks, he wrote, was the kind of vague justification that strict scrutiny was supposed to reject.5Justia U.S. Supreme Court Center. Fisher v. University of Texas at Austin
Alito also raised a pointed concern about Asian-American applicants. He argued that UT Austin had never explained why underrepresentation of Asian-American students in many classes justified a program that arguably worked against them in admissions. He accused the majority of accepting stereotyped assumptions about students admitted through the Top Ten Percent Plan.
Justice Thomas wrote separately to restate his position that any government use of race in higher education admissions is categorically prohibited by the Equal Protection Clause, regardless of the institution’s intentions. He called educational diversity a “faddish theory” that could not justify racial classifications.
What Fisher Means Today
Fisher II’s holding lasted seven years. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, decided on June 29, 2023, the Supreme Court held that race-conscious admissions programs at Harvard and the University of North Carolina violated the Equal Protection Clause. Chief Justice Roberts, writing for the majority, held that the programs failed strict scrutiny because their diversity objectives were not sufficiently focused or measurable, they used race in a negative manner, they relied on racial stereotyping, and they lacked meaningful endpoints. Justice Gorsuch’s concurrence stated that the decision “overrules its higher-education precedents following Bakke.”6Cornell Law Institute. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
The practical result is that no public or private university receiving federal funding may deliberately consider an applicant’s race in admissions decisions. The Court left one narrow opening: applicants may still write about how their racial background shaped their character or experiences in a personal essay, so long as the admissions office evaluates those qualities rather than using the essay as a proxy for racial classification. The kind of race-conscious holistic review that Fisher challenged and lost against is no longer available to any university.
Fisher itself still matters for understanding how the doctrine moved. Fisher I established that courts must apply strict scrutiny with real teeth. Fisher II showed what it looked like when a university cleared that bar. The seven-year gap between Fisher II and SFFA v. Harvard shows how quickly constitutional doctrine can shift when the Court’s composition changes. Many of the concerns Justice Alito raised in his 2016 dissent, including the treatment of Asian-American applicants and the demand for measurable diversity goals, became the majority’s reasoning in 2023.
The Top Ten Percent Plan that formed the backbone of UT Austin’s admissions during Fisher’s era still exists. The legislature capped automatic admissions at UT Austin starting with the 2011–12 entering class because applications had surged past what the university could absorb, and the threshold has since been tightened to roughly the top six percent of a graduating class at UT Austin specifically.7Texas Comptroller of Public Accounts. Top 10 Percent Rule Students who fall outside that automatic threshold now compete through holistic review that can no longer include race.