56. Why Was Affirmative Action Back Before the Court So Soon?
Texas’s Top 10% Plan
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.
I think education is different in some ways - one being that it often includes more than just one sector of the students' lives (time in class, work, living together, multiple classes in different colleges, study abroad). It also is often a gateway into professional spaces and academic production that is then disseminated.
Evaluating diversity based off race quotas - especially when the 10% Plan was reported to be effective seems suspect on its face - especially in a globalized world. I do not believe race on its own tells enough of a story to justify it for diversity intentions, especially reviewed on a strict scrutiny level. For example, an applicant who is listed as a certain race may not necessarily be bringing all the levels of diversity the university is considering or attributing to that race. Is this applicant born and raised in the United States? What race are their legal guardians? Are they adopted? Are they bilingual? Have they lived and/or worked or studied in their countries of origin?
I think education is also importantly different (which could why it is often under review) because there is usually a limited time frame that that institute is involved in that student's life - and then the results can be studied and placed into statistics. In a way, universities operate as mini-experts/agencies in what it takes to get their intended result. I do believe there should be deference towards universities in unique ways that academia requires, but I support stricter requirements for universities articulating how they have come to set those standards. The difference in education lies in the fact that, by preparing a diverse student body, public institutions ultimately benefit from that diversity as graduates enter the workforce and contribute to society. The 10% Plan cannot necessarily capture the "diversity" an educational institution may require because that scale could not possibly capture non-GPA related considerations.