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Olivas – Affirmative Action

June 24, 2013 – The U.S. Supreme Court today sent back to a lower court for review a University of Texas case on race-based admissions. In a 7-1 decision, the court said UT's policy needs greater scrutiny than was given by the Fifth U.S. Court of Appeals. The decision leaves unsettled the question of continued use of race-based admission policies.  The suit was filed in 2008 by Abigail Fisher who was denied admission to the university as an undergraduate. Fisher, who is white, contended the school had discriminated against her on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment.  The university's policy was upheld by a state district court and affirmed by the Fifth Circuit. University of Houston Law Center Professor Michael A. Olivas, William B. Bates Distinguished Chair of Law and director of the Institute of Higher Education Law & Governance, has followed this case and numerous others closely as they made their way through the courts. In addition to his teaching duties, he is the author of Suing Alma Mater, Higher Education and the Courts, as well as numerous other books and articles. The professor offered his initial reaction to today's ruling.

"The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity," Justice Anthony Kennedy wrote in the majority opinion. The Court vacated and remanded to the circuit court, to have them reconsider the key holding of Grutter v. Bollinger—that any plan be narrowly tailored. As I had feared, they misapprehended the Percent Plan, which is race-neutral and resulted in over half its admits being Anglos. But the circuit court did not pin it down with enough narrow-tailoring analysis, which the remand must undertake.

It could then find that the Percent Plan and the use of AA is sufficient, or is not narrowly enough tailored.

I assisted in the drafting of the Percent Plan, a tremendous success, and it was race-neutral. It is sad that such a plan has occasioned such misunderstanding, and given aggrieved Anglo plaintiffs more occasions to assume that if they are not admitted, it must have been due to a lesser-deserving minority taking their place. This did not happen here, and the circuit court should uphold its earlier ruling.

Olivas also discussed the decision in a blog posted by the Johns Hopkins University Press. Click here to read his comments.

To schedule a media interview with Professor Olivas, contact Carrie Criado, Executive Director of Communications and Marketing, 713-743-2184,; or John T. Kling, Communications Manager, 713-743-8298,