Abigail Fisher

Abigail Fisher needs to get over it

Abigail Fisher, a rejected undergraduate UT applicant, filed a petition Tuesday for her case, Fisher v. University of Texas, to be heard by the Supreme Court for a second time.
Abigail Fisher, a rejected undergraduate UT applicant, filed a petition Tuesday for her case, Fisher v. University of Texas, to be heard by the Supreme Court for a second time.

Abigail Fisher and her lawyers are bringing her case to the US Supreme Court for a second time. Abigail Fisher and her lawyers need to move on. 

Fisher is painted by her legal team as a victim of being white in a world that favors minorities. It's ridiculous. A successful and valuable University seeks diversity in order to enhance the overall quality of education for its students. Imagine going to a school where everyone was white, served as president of NHS and played cello in their high school orchestra. It would be unbearable. The stock of college applicants that fit this demographic is high. Distinguishing factors are necessary, but sadly not everyone has them. 

Many college applicants are under the false impression that being involved in many extracurriculars and striving for high standardized testing scores are these distinguishing factors and their ticket to a good university, but they're wrong. 

Suzy Lee Weiss wrote an op-ed for The Wall Street Journal in 2013 criticizing the competitive colleges that rejected her. Weiss ponders the ways she could have solved her lack of diversity in her applications — "Show me to any closet, and I would've happily come out of it... I also probably should have started a fake charity. Providing veterinary services for homeless people's pets. Collecting donations for the underprivileged chimpanzees of the Congo. " 

Weiss' poor attitude represents the problem I have with Abigail Fisher's case and the formulaic college application mindset: They share an assumption that anyone who is passionate enough about a cause to start their own charity, anyone who came to terms with their sexuality or anyone who showed an honest and true passion in a specific field did so only to aid their chances of getting into their school of choice. I would hope admissions counselors would accept someone who has made an effort to better the world over a senior class president if it came down to it. 

A formula for a guaranteed college acceptance does not exist. A proven passion in a specialized area is preferable to serving a leadership position for the sake of upping a resume. Abigail Fisher attended and graduated from Louisiana State University, rejecting an offer of attending a satellite UT campus with the option of transferring later. Why she chose to obsess over her semi-rejection from a competitive University enough to take a faulty case to the Supreme Court not once, but twice, is lost on me. 

Photo Credit: Charlie Pearce | Daily Texan Staff

Abigail Fisher’s lawyers filed a petition Tuesday for her case, Fisher v. University of Texas, to be heard by the Supreme Court a second time.

Fisher, a rejected undergraduate UT applicant, filed a lawsuit in 2008 after claiming the University discriminated against her based on her race. Fisher said the admissions policy was in violation of the equal protection clause of the 14th Amendment. After losing at the 5th U.S. Circuit Court of Appeals in 2009, the case reached the Supreme Court in 2012. 

The Supreme Court ultimately vacated and remanded the case in a 7–1 decision, ordering the 5th Circuit to examine UT’s race-conscious admissions policy more carefully to determine whether the University’s policies were necessary to achieve a “critical mass” of minority students. A three-judge panel sided with the University last year, and the full, 15-person court declined to rehear the case in November.

The petition states the 5th Circuit “again failed to apply traditional strict scrutiny” to the admissions process.

The petition, asking the Supreme Court to grant Fisher a writ of certiorari, which means the Supreme Court would entertain the case, states, “At every turn, the majority was ‘persuaded’ by UT’s circular legal arguments, post hoc rationalizations for its decision to reintroduce racial preferences, and unsupported factual assertions.” 

Fisher’s case attempts to counter affirmative action, a policy or action that favors typically discriminated against groups of people. 

The Supreme Court must accept a writ of certiorari from the lower court before hearing a case. 

If at least four justices vote to grant Fisher a writ of certiorari, they will hear her case in the spring or near the beginning of the next court term. 

Fisher was not in the top 10 percent of her high school graduating class and was not granted automatic admission. Her application was then placed under holistic review, alongside approximately 16,000 other applicants who were not in the top 10 percent. In holistic review, applicants are chosen based on academic and personal achievements as well as a long list of individual characteristics, including, but not limited to, race, ethnicity and socioeconomic status.

The University released a statement in defense of the courts’ past decisions, saying the University will file a brief in opposition to the petition.

“The University of Texas uses race as one factor in a holistic admissions policy that allows us to assemble a student body that brings with it the educational benefits of diversity,” the statement said. “Our policy is narrowly-tailored, constitutional and has rightly been upheld by the courts multiple times. The university will file a brief in opposition to the latest petition.”

Fisher’s lawyers argue that an admissions process using an interest in “qualitative diversity” relied too heavily on requirements based on stereotypes about “less-privileged applicants.”

According to the petition, “If not reviewed, the Fifth Circuit’s decision will signal to universities and courts throughout the nation that strict scrutiny is a pro forma exercise and that Fisher I is a green light for racial preferences in admissions decisions.”

Photo Credit: Charlie Pearce | Daily Texan Staff

Editor's note: This is part of a Point/Counterpoint series regarding Fisher v. University of Texas. To read the opposing viewpoint, click here

Raise your hand if you’re tired of hearing about Fisher v. Texas! Although court cases are by no means a quick or breezy process, it seems that Abigail Fisher’s battle has been pinged around on quite a tumultuous journey through the appellate court pinball machine. After the case made its way to the Supreme Court last year, justices vacated a previous ruling and remanded it to lower courts. The Fifth Circuit Court of Appeals heard the case for a second time, the court sided with the University once again and Fisher’s party was still not satisfied. Petitioners have since sent two requests for the court to hear their case en banc (with a full panel of 15 judges) and been denied both times. So, guys, call me crazy, or maybe just a little impatient — but I think the Fifth Circuit has made its point loud and clear. Team Abigail, it’s time to find bigger Fish to fry.

It’s been eight years since the denied college freshman first called foul play, citing that the University’s use of race as a “plus-one” factor in the admissions process violated the Equal Protection Clause of the 14th Amendment. And since the first go-around in the appellate court failed to apply the proper test of strict scrutiny, it made its way to the high court, where justices deemed it be heard by the Fifth Circuit once again with the added scrutiny.

Although the appellate court sided with the University for a second time in July, Abigail’s disgruntled team of petitioners say the battle is far from over. “This case will be appealed back to the Supreme Court,” Edward Blum, director of the Project on Fair Representation, which has funded Fisher’s case, said in a statement after the appellate court declined, again, to hear her case en banc.

But why? Speculation that the high court would strike down affirmative action altogether has since been quieted. Precedent-setting history was not made during Fisher’s hearing, and even a different opinion from the appellate court would lack the widespread berth that many had hoped for. And the aforementioned chance that the Supreme Court would choose to hear the case again is highly, highly unlikely.

For the less constitutionally-conscious folks out there, race-conscious admissions plans must satisfy a compelling state interest, narrowly tailored to do this in the least restrictive way possible. The question is not whether the university has a compelling interest in diversity — the Supreme Court made that clear last year when it chose not to set new precedent — but whether the University of Texas at Austin itself has an explicit and narrowly tailored plan.

“To deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter,” wrote Judge Patrick Higginbotham, writing for the Fifth Circuit majority. By seeking to establish a critical mass of students, the University is not discriminating against — or advocating for — certain students. It is merely ensuring a holistically diverse and widespread student body, and it is not doing so without regard to an extremely stringent standard.

Despite claims to the contrary, ensuring a diverse environment still has a place in today’s debate. Though Texas’ top 10 percent rule arguably provides a widespread population of students throughout the state, justices are wary that this law alone could satisfy a diverse critical mass. When used alone, this race-neutral alternative could lead to underperformance of students — or highly competitive students moving to lower-performing districts, taking easier classes in order to meet this guaranteed admissions requirement.

These repeated requests for an en banc hearing only belabor an answer the appellate system has made explicitly clear — Fisher’s day in court is done.

Deppisch is a government senior from League City. Follow Deppisch on Twitter @b_deppy.

Photo Credit: Charlie Pearce | Daily Texan Staff

Editor's note: This is part of a Point/Counterpoint series regarding Fisher v. University of Texas. To read the opposing viewpoint, click here. 

Fisher v. University of Texas, a 2013 case that began when Abigail Fisher, a rejected white applicant, sued the University in 2008 for violating the 14th Amendment, questions the validity of using race as a factor in school admissions. Unfortunately for Fisher, the U.S. Fifth Circuit Court of Appeals recently declined to rehear her case after ruling in July, for a second time, that UT’s use of race in its admissions policy is constitutional, leaving her to appeal, again, to the U.S. Supreme Court. Whether the public agrees with Fisher’s stance in the case is irrelevant; she has the right to see the highest U.S. court for a second time.

While Fisher claims she was the victim of discrimination in the holistic review process applied to UT applicants not admitted to the University through the Top Ten Percent Rule, her application just wasn’t enough to secure a spot with the 42 white students who were admitted despite their class rank. The University claimed it would not have accepted her even if she were any other race. Hailing from a Longhorn family and growing up with the aspiration to follow in their footsteps, I understand her sense of injustice. Critics said the courts that ruled in favor of the University were not strict enough in their examination, affirming the University’s case without considering Fisher’s fairly. Both Fisher and Edward Blum, who funds the case through his legal defense fund, simply want a hearing by an en banc court (meaning the full 15-judge panel would hear the case) that would examine the case without bias, rather than the skeleton courts they’d appealed to before in which only three judges heard the case.

This case is reminiscent of the famous 2003 Grutter v. Bollinger case in which a white student applied to University of Michigan Law School and was denied under similar circumstances and the 1978 University of California v. Bakke case in which a white student experienced something similar in his application to medical school. Fisher is the Grutter/Bakke of our generation but isn’t getting the same opportunity for retrial in high courts as they did. All three cases question affirmative action policies as a violation of Equal Protection Clause and Civil Rights Act of 1964. All three include instances in which a white student wasn’t accepted over minority students. However, in this day and age, affirmative action is being called into question where it was arguably more necessary in the past. So, as the two before it, Fisher’s case deserves an end at the Supreme Court.

Most of all, the court should rehear her case in order to put it to rest for good. Six years and several appeals later, Fisher and her family don’t seem to be letting up at all. Although Fisher has already earned a bachelor’s degree from Louisiana State University and currently works as a financial analyst in Austin, her rejection from UT isn’t something she’s taking lightly, even to this day. Having the highest of courts to tell her she’s wrong would not only end this particular debate, but emphasize to students of every race the importance of working hard to get accepted to your school of choice.

Fisher and her supporters seem to be confused about the fact that universities can’t let everyone in. Class rank, test scores, essay quality, resume and recommendations all go into the review process and everyone, regardless of race, must exceed certain requirements in order to earn admission to the school. If the Supreme Court agreed to rehear the case, and even the more conservative members ruled in favor of upholding diversity over mediocre academic achievements, perhaps the young people of the nation would be motivated to work harder in their studies. It would reinforce the idea to Americans that belonging to a minority race is typically less helpful and more hindering to academic and career success.

Racial basis for admission is being challenged by many in modern society, but the strict scrutiny of the Supreme Court deciding on the Fisher case could put a legal end to the question once and for all.

Griffin is a journalism freshman from Houston. Follow her on Twitter @JazmynAlynn.

Fisher should end her case, once and for all

Abigial Fisher, a denied UT applicant, requested the 5th Circuit Courtof Appeals hear her case against the University en banc on July 29.
Abigial Fisher, a denied UT applicant, requested the 5th Circuit Courtof Appeals hear her case against the University en banc on July 29.

Yesterday, the full Fifth Circuit Court of Appeals declined to rehear the case of Abigail Fisher, who has unsuccessfully been challenging the University's limited use of race-based affirmative action for years now.

Fisher, as you may recall, saw her case on the constitutionality of the process reach the United States Supreme Court about two years ago. The high court allowed affirmative action to remain in place, but held that the Fifth Circuit erred in not strictly scrutinizing the process at the University. Using the mandated "strict scrutiny," the Fifth Circuit once again affirmed the constitutionality of UT’s holistic review process, which includes race-based affirmative action. With the full court declining to rehear the case, Fisher's last respite is another round at the Supreme Court, which Edward Blum, whose Project on Fair Representation has provided funding for Fisher’s case, has implied will be her course of action.

The Supreme Court will likely not hear Fisher's appeal, and this embarrassing saga for the University will finally come to an end. And, whatever one's personal opinions on affirmative action or other preference-type programs, the end of this case should be viewed as a very good thing.

Far from being an ideal plaintiff for such a case, Fisher does not do justice to the important constitutional fight this complex issue warrants. She initially filed suit against the program after being denied admission to the University as a high school senior. This, despite the fact that her grades, test scores and other factors placed her well below the typical range of admitted applicants, black or white.

Personally, I support affirmative action and think its limited use at the University has countless positive impacts. But even for those who do not support the program, it should be recognized that Fisher is a rather lousy advocate against it. It's time for her to give up this case, once and for all.

Horwitz is an associate editor.

The 5th U.S. Circuit Court of Appeals declined Abigail Fisher’s request Wednesday for a full panel of judges to hear her affirmative action case against the University.

Of the court’s 15 judges, five voted in favor of rehearing the case while 10 voted against it, according to the official decision released by the 5th Circuit.  

Fisher, a rejected UT applicant, petitioned for an en banc hearing in July following a 2-1 decision from a three-judge 5th Circuit Court panel, which ruled in favor of the University’s race-conscious admissions process. This is the second time the court has denied Fisher’s petition for an
en banc.

“Abby Fisher and her family are disappointed with the court’s denial for a rehearing, but remember that they have been in this posture before,”  said Edward Blum, director of the Project on Fair Representation, in a statement. The Project on Fair Representation has provided funding for Fisher’s case.

Fisher, a Sugar Land resident, sued the University in 2008 when she was denied acceptance to the University because her grades were not high enough to guarantee her admission under the top-10 percent rule. Her defense argued UT’s admissions policy violates the Equal Protection Clause of the 14th Amendment since minority students were accepted with lower grades than hers. 

In 2009, a district court upheld the University’s admission policy as constitutional, a decision that was affirmed by a three-judge 5th Circuit Court panel
in 2011. 

The case eventually reached the Supreme Court in 2012, but it was sent back to the 5th Circuit Court in 2013. The Supreme Court decided the case did not meet strict scrutiny, meaning the lower courts still needed to determine the actual constitutionality of the University’s race-conscious policy.

Even after the court’s ruling Wednesday, Blum said Fisher’s case would be appealed back to the Supreme Court.

“The justices had to correct the 5th Circuit’s errors the first time Abby Fisher took her case to the high court, and we look forward to making our arguments to them once again,” Blum said.

President William Powers Jr. said the University is pleased with the appeals court’s ruling.

“The University of Texas at Austin is committed to maintaining a student body that provides the educational benefits of diversity while respecting the rights of all students,” Powers said in a statement. “The exchange of ideas and cultural richness that occurs when students from diverse backgrounds come together on our campus prepares all our students for life in a global society.”

Photo Credit: Charlie Pearce | Daily Texan Staff

A full appeals court panel may not hear the Fisher v. UT case, according to two law professors at the University.  

In late July, denied University applicant Abigail Fisher asked the U.S. Court of Appeals for the 5th Circuit panel to hear her case one more time.

Her request followed a 2-1 decision from the three-judge 5th Circuit Court panel on July 15, which ruled again in favor of the University’s race-conscious admissions process.

Law professor Joseph Fishkin said, although very few petitions are accepted in circuit courts nationally, Fisher may have a small chance since the 5th Circuit Court has been known to occasionally undertake them. 

However, Fishkin said it is hard to determine the likelihood of Fisher receiving an en banc — meaning a full panel of judges would have to hear her case — since the 5th Circuit is a fairly conservative court, and the last ruling on the case came from a divided panel of judges.

“If they do decide to do it, then that means the whole 5th Circuit gets the case,” Fishkin said. “I’m not sure how much appetite the judges will have to extend it another round.”

Law professor David Gonzalez said en banc reviews are more likely in cases that have not already gone to the Supreme Court.

“It’s hard for me to think they would want to rehear a case,” Gonzalez said.

Edward Blum, director of the Project on Fair Representation, an organization that has provided funding for Fisher’s case, said in an email that Fisher has “high hopes” that the 5th Circuit Court will hear her appeal and rule in her favor. 

Fisher, a Sugar Land resident, sued the University in 2008 when she was denied acceptance to the University because her grades were not high enough to guarantee her admission under the top-10 percent rule. Her defense argued UT’s admissions policy violates the Equal Protection Clause of the 14th Amendment since minority students were accepted with lower grades than hers. 

In 2009, a district court upheld the University’s admission policy as constitutional, a decision that was affirmed by a three-judge 5th Circuit Court panel in 2011. The 5th Circuit Court also denied Fisher’s request for an en banc.

The case eventually reached the Supreme Court in 2012 but was sent back to the 5th Circuit Court in 2013 after it was decided the case did not meet strict scrutiny, meaning the lower courts still needed to determine the actual constitutionality of the University’s race-conscious policy.

“The Supreme Court told the 5th Circuit that it erred in its earlier opinion concerning the proper standard for using race in admissions,” Blum said. “That is a clear victory for [Fisher]. UT was ordered to pay the costs of her appeal to SCOTUS [Supreme Court of the United States].” 

If the 5th Circuit does not grant Fisher’s request for an en banc review, Blum said Fisher would then again attempt to appeal her case back to the Supreme Court.

In this podcast, Jacob Kerr, Amanda Voeller and guest Nick Castillo discuss the UT System Board of Regents naming Naval Adm. William McRaven the sole finalist to replace Francisco Cigarroa as chancellor. They also talk about media reports on Texas football coach Charlie Strong removing multiple players off the football team for violating his list of core values and Abigail Fisher's request for the 5th Circuit Court of Appeals to hear her case against the University's admissions policy en banc.

Photo Credit: Charlie Pearce | Daily Texan Staff

Abigail Fisher, a rejected undergraduate UT applicant, asked the full 5th Circuit Court of Appeals panel on Tuesday to rehear her case challenging the University’s holistic review admissions process, which considers the applicant’s race as a factor.

Fisher sued the University in 2008 for discriminating against her based on her race, claiming the admissions policy violated the 14th Amendment. In 2009, a District Court ruled in favor of UT. In 2011, a three-judge panel ruled that UT’s admissions policy is constitutional. After that decison, the 5th Circuit Court denied Fisher's request to rehear the case en banc, meaning all 15 judges would hear the case.

While Fisher has said she was willing to take the case back to the Supreme Court, she again requested on Tuesday the case be heard en banc.

The case reached the Supreme Court in 2012, but was sent back to the 5th Circuit Court in 2013. In a 7-1 decision, the Supreme Court determined the appeals court had failed to determine whether the University’s policies are narrowly tailored and necessary to achieve a “critical mass” of minority students.

On July 15, the same 5th Circuit Court three-judge panel that upheld UT’s policy in 2011 again ruled UT may continue using its holistic review admissions policy.

The petition Fisher filed on Tuesday argues that the three-judge panel failed to follow the Supreme Court’s mandate. Fisher argues the University did not clearly state its critical mass goal, and its policy is unnecessary because racial preferences have a trivial impact. The petition also argues that the panel disobeyed the Supreme Court's request for the appeals court not to give any deference to UT.

In November, attorneys for both Fisher and the University presented arguments to the appeals court. Representing the University, attorney Greg Garre said although UT does not use specific numbers to determine a critical mass, the University is still able to determine when this mass has been met.

The University uses race as part of an admissions process that determines 25 percent of the student body, and race is one of several factors that, combined, determine 4/7 of an applicant’s personal achievement index. That score is in turn combined with the applicant’s academic index score to determine if the applicant should be admitted to the University.

Abigail Fisher talks to press after her attorneys argued her case in front of the Fifth Circuit Court of Appeals on Wednesday Nov. 13, 2013.  In 2008, Fisher sued the University for discriminating against her admission application based on her race. The fifth circuit court ruled in favor of the University on Tuesday. 

 

Photo Credit: Charlie Pearce | Daily Texan Staff

On Tuesday, the U.S. Court of Appeals for the Fifth Circuit ruled in a 2-1 decision that UT could continue to use its affirmative action program to promote diversity on campus. The case, Fisher v. University of Texas, has bounced around the legal system for the past six years and isn’t likely to settle down anytime soon. In the meantime, however, we are pleased that the anti-affirmative action agenda behind the case looks one step closer to crumbling and hope that the administration will take this opportunity to redouble its efforts at diversity on campus.

The case involves Abigail Fisher, a 24-year-old white woman who was denied admission to UT-Austin in 2008. Fisher had an SAT score of 1180 out of 1600. In other words, her test scores were by no means awful, but neither were they outstanding. Fisher, though, had no doubts: Her rejection was due to UT’s consideration of race and ethnicity in the admissions process, so, at the urging of conservative operative Edward Blum, she, along with former co-plaintiff Rachel Michaelewicz, filed a lawsuit against the University.

When the case appeared before the Fifth Circuit in 2010, it voted as it did Tuesday, to reject Fisher’s claim. However, when Fisher appealed to the Supreme Court, that body, in a 7-1 decision issued last summer, kicked it back to the Fifth Circuit for further review, arguing that the lower court hadn’t satisfactorily answered the questions of whether holistic review was narrowly tailored to the purpose of increasing diversity and whether the University lacked an alternative workable remedy for achieving that goal.   

On Tuesday, the Fifth Circuit answered both those questions in the affirmative, ruling that UT’s race-conscious holistic review process, which is only applied to students who aren’t admitted under the state’s automatic admission program for high-ranking high school seniors, is constitutional. This board applauds the Fifth Circuit for its correct opinion on this divisive issue. While holistic review isn’t a perfect solution, a reversal of the Fifth Circuit’s previous decision would have prevented further progress from being made on that front.

Now that the case is likely to head back to the Supreme Court, it is unclear what will happen. The court has, in recent times, delivered several blows to affirmative action. Most recently, in April, it voted to uphold Michigan’s voter-approved ban on affirmative action in university admissions. Before that, in the ‘90s, Hopwood v. Texas, a case hitting much closer to home, stripped away the Law School’s right to consider race in admissions. But the constitutionality of affirmative action is still a mystery to the public as a result of the lack of consistency among the court’s opinions on affirmative action cases.

Four times in recent jurisprudential history, the court has also explicitly decided not to overturn the constitutionality of affirmative action programs in higher education. Starting with Regents v. Bakke in 1978; following with the 2003 cases Grutter v. Bollinger and Gratz v. Bollinger, which together overturned Hopwood; and culminating with Fisher v. Texas last year, the court has on several important occasions allowed universities to right the wrongs of centuries of injustice by considering an applicant’s race in the admissions process.

We agree with these latter decisions not just for their moral correctness but also for their observable benefits. The court would do well to hew to them if and when it takes the case back up as study after study has shown that affirmative action programs like UT's not only drastically improve diversity goals on campus but also do not diminish average student quality.

Since Hopwood was overturned in 2003, the University has made great strides in promoting diversity on campus. However, there is still much work to be done. Even with the ability to use race as a factor in the holistic review process, certain populations at UT are still underrepresented. While the administration celebrates this victory, it means nothing if they don’t actually take advantage of opportunities to increase diversity.