In 2003, Justice Sandra Day O’Connor upheld affirmative action in Grutter v. Bollinger but added a warning: race-conscious admissions shouldn’t last forever. She predicted they might not be needed in 25 years.
Nine years later, the Court was already back. Why? Because Texas had done something unusual: it had created a race-neutral plan that produced diversity without explicitly considering race. Abigail Fisher asked: If diversity can happen without using race, why use race at all?
The Top 10% Plan—and Its Limits
Texas guaranteed admission to any student graduating in the top 10% of their high school class. Because of how segregated many high schools remain, the plan produced diverse student bodies without explicitly mentioning race.
But outside the top 10%, UT Austin noticed it was losing racial and geographic diversity. So it added a holistic review, looking at essays, leadership, life experiences, and yes, race as one small factor.
Fisher, who didn’t make the top 10%, argued that considering race at all was unfair.
The Legal Question
Fisher’s case forced the Court to confront a new version of an old debate:
Is affirmative action justified if race-neutral plans already produce diversity?
Or is there still value in considering race as one factor, especially for students who bring unique experiences that grades and class rank alone can’t capture?
Fisher I: Tightening the Screws
In 2013, the Supreme Court didn’t decide whether UT’s program was unconstitutional. Instead, it sent the case back, saying the lower court hadn’t applied “true strict scrutiny.” That meant:
Universities carry the burden of proof: not just showing good intentions, but demonstrating that race is necessary to achieve their diversity goals.
Courts can no longer simply defer to the university’s judgment.
Fisher II: A Narrow Win
Three years later, UT’s plan was back at the Court. This time, in a surprise twist, Justice Anthony Kennedy—long skeptical of affirmative action—wrote the opinion upholding UT’s policy. Why? Because it was limited, carefully designed, and backed by evidence showing the Top 10% Plan alone wasn’t enough to build the kind of diverse class UT wanted.
It was a win for affirmative action, but a warning shot: if universities used race, they needed data to prove it was necessary—and they had to keep reevaluating.
Why Did Education Get Special Treatment in the First Place?
The Court has long applied strict scrutiny to any government use of race. That’s why it struck down race-based hiring in City of Richmond v. Croson (1989) and race-based contracting in Adarand Constructors v. Peña (1995).
So why did universities get more leeway?
Justice O’Connor’s answer in Grutter was simple: academic freedom. Universities have a unique mission—preparing leaders for a diverse democracy—and courts historically give them space to define how to do that.
That trust didn’t extend to construction contracts or hiring quotas. In those contexts, the Court said there wasn’t enough evidence of discrimination or a compelling enough reason to justify using race. But in education, diversity itself was treated as a core part of the mission, on par with academic freedom to design curricula or fund student debate groups.
The Question Fisher Raised
Fisher didn’t just question UT’s policy; it questioned that trust. If a race-neutral plan like Texas’s Top 10% rule already worked, did universities still deserve that special deference? Or had the time come to treat them like every other public institution—subject to strict scrutiny that is, in practice, “fatal in fact”?
Why It Matters
The debate after Fisher wasn’t just about one student or one state. It was about whether education really is different, and whether courts should keep treating universities as special when it comes to shaping diverse learning environments.