How Not To Bring A Reverse Discrimination Suit

By Habib Olapade

Habib Olapade is a junior at Stanford University studying political science.
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2015 has been marked by scenes of students rallying against various forms of institutionalized racism at colleges across the nation. [1] In particular, some students of color have insisted, with good reason, that fraternity parties restricted to “white girls only,” and university presidents who deliberately avoid responding to complaints about racially motivated public belittling do little to make minority students feel welcome on campus. [2] In the midst of this tense environment, it is only fitting that the Supreme Court is getting ready to decide Fisher v. University of Texas, a case whose results will determine whether colleges across the U.S. will be able to keep the race-based affirmative action programs that allow admissions offices to use a student’s race as a factor in the admissions process. [3]​

The plaintiff, Abigail Fisher, is a white, twenty-five year old female who hails from Sugarland, Texas, an extremely affluent Houston suburb that is well-connected to Texas’ largest oil and healthcare firms. [5] Fisher attended Stephen F. Austin High School, one of the best public secondary schools in the state, and ranked in the top twelve percent of her class. [6] However because the University of Texas at Austin only provides guaranteed acceptance to students who rank in the top eight percent of their high school class, Fisher had to apply for admission under the regular admissions process in 2008. [7]

Under the regular admissions process, admissions officers consider an applicant’s class rank, academic background, SAT scores, volunteer service, achievements, socioeconomic status, essays, family environment, recommendations, and race when making their admissions decision. [8] In order to streamline the process of reviewing their immense number of applications, UT Austin’s admissions officers devised a quantitative system, with applicants receiving academic scores out of four and personal achievement scores out of six. [9] Potential students must meet an academic score threshold in order to be considered. Their personal achievements are then weighted against those of the other applicants. In 2008, no applicants, regardless of race, were extended acceptance to the university if they did not have academic scores greater than or equal to 3.5. [10] Fisher’s academic score was 3.1, which means that even if she had significant extracurricular achievements, which she in fact had not, UT Austin would not have considered her as a candidate for the matriculation class of 2009. Despite this impasse, UT Austin agreed to extend Fisher an acceptance to the university in 2010 if she were to first attend a public college in Texas and receive a minimum GPA of 3.2 during her freshman year. [11] Fisher declined and instead enrolled at Louisiana State University.

Fisher, now a college graduate, is claiming that UT Austin injured her because she was denied an opportunity to attend the school due to an unequal playfield. However, regardless of UT Austin’s affirmative action policies, Fisher did not have the academic standing to be accepted by the university according to the admissions office’s ranking system. Furthermore, the university had made a consolidation offer, which Fisher turned down. For her “injury,” Fisher demands a refund of the seventy-five dollar application fee she paid in 2008. [12] At this point, readers may be thinking: certainly this whole ordeal is ridiculous. However, Fisher’s case could not have gotten this far if there was a rule forbidding this kind of nonsense. These readers may liken the Fisher case to the 2003 invasion of Iraq or gluttonous consumption of deep fried coke: ill advised on almost every conceivable level, yet perfectly legal.

Federal judges have confronted these kinds of cases in the past and have never hesitated to dismiss them as a waste of time. There are two reasons why Abigail Fisher’s case should be dismissed for a lack of standing.  First, her case is moot because she went on to earn a college degree in finance from LSU; any “injury” she supposedly sustained was minimal and did not ultimately deprive her from pursuing higher education. [13] Secondly, a seventy-five dollar refund is not going to change the fact the Fisher did not attend UT Austin or receive a “fair” shot in her admissions cycle. Her lawyer knew as much, as he conceded just that in both writing and oral argument when the litigation was in lower court (lest the reader receive the wrong impression from this narrative, Fisher’s lawyer clerked for Justice John M. Harlan II and was not an ignoramus). [14] Hence, Abigail would have been just as worse off financially even if she had been accepted to UT Austin in 2008. For these two reasons alone, Fisher’s case should be dismissed from court. While UT Austin did reject Fisher, it was not because the university was reverse-discriminating against her – she simply did not meet the college’s baseline requirements.


[1] Jonah S. Lefkoe, “Black Lives Matter March Call For Reforms,” THE HARVARD CRIMSON (November 2, 2015). http://www.thecrimson.com/article/2015/11/2/black-lives-matter-march/ Jessie Washington, “Councilwoman Holds Rally In Response to University of Oklahoma Incident,” THE DAILY PENNSYLVANIAN (March 17, 2015). http://www.thedp.com/article/2015/03/university-of-oklahoma-incident-response-rally Caleb Smith, “Students Shut Down San Mateo-Hayward Bridge 68 People Arrested, 11 Jailed,” THE STANFORD DAILY (January 19, 2015). http://www.stanforddaily.com/2015/01/19/students-shut-down-san-mateo-hayward-bridge-reclaim-mlk-day/ Forrest Milburn, “Black lives Matter Activists Discuss System Racism At Panel,” THE DAILY TEXAN (October 2, 2015). http://www.dailytexanonline.com/2015/10/02/black-lives-matter-activists-discuss-systematic-racism-at-panel Isobel Futter, “Ann Arbor Activists March To Protest Police Brutality,” THE MICHIGAN DAILY (November 10, 2015). https://www.michigandaily.com/section/news/march
[2] Elahe Izadi, “The Incidents That Led to the President of The University of Missouri’s Resignation,” THE WASHINGTON POST (November 9, 2015). https://www.washingtonpost.com/news/grade-point/wp/2015/11/09/the-incidents-that-led-to-the-university-of-missouri-presidents-resignation/ Susan Svriuga, “Students Accuse Yale SAE Fraternity Brother of Saying White Girls Only At Party Door,” THE WASHINGTON POST (November 2, 2015). https://www.washingtonpost.com/news/grade-point/wp/2015/11/02/students-accuse-yale-sae-fraternity-brothers-of-having-a-white-girls-only-policy-at-their-party/
[3] Fisher v. Texas, Petition for a Writ of Certiorari (February 10, 2015). http://lyldenlawnews.com/wp-content/uploads/2015/02/Fisher-II-cert-petition-2-10-15.pdf
[4] Regents of the University of California v. Bakke, 438 U.S. 265 (1978). https://www.law.cornell.edu/supremecourt/text/438/265 While it was unclear whether Justice Powell’s concurrence in Bakke was actually good law, the Court per Justice O’Conner reaffirmed that it was in Grutter v. Bollinger, 539 U.S. 306 (2003) https://www.law.cornell.edu/supct/html/02-241.ZS.html and Gratz v. Bollinger, 539 U.S. 244 (2003) https://www.law.cornell.edu/supct/html/02-516.ZS.html.
[5] Fisher v. Texas, Brief of Respondents University of Texas at Austin No14-891. City of Sugarland Financial Reports, City of Sugarland accessed January 4, 2016 available at http://www.sugarlandtx.gov/finance/documents/CAFR_2010.pdf/    
[6] Lisa Falkenberg, “Abigail Fisher Needs To Get On With Her Life,” THE HOUSTON CHRONICLE (August 7, 2014).http://www.houstonchronicle.com/news/columnists/falkenberg/article/Falkenberg-Abigail-Fisher-needs-to-get-on-with-5675796.php.
[7] Automatic Admission to the University of Texas at Austin, University of Texas Admissions, accessed January 4, 2016 available at http://admissions.utexas.edu/apply/decisions. It should be noted that the Texas legislature recently changed the top 10 percent program due to over-enrollment. Current Texas law only provides automatic admission to students who rank in the top 8 percent of their high school senior class.  
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Supra note 5.
[12] Supra note 3.  
[13] DeFunis v. Odegaard, 416 U.S. 312, 319 (1974). https://www.law.cornell.edu/supremecourt/text/416/312
[14] Steel Corporation. v. Citizens for a Better Environment, 523 U.S. 83, 107 (1998). https://www.law.cornell.edu/supremecourt/text/96-643. Bert Rein, Wiley Rein LLP Attorneys accessed January 4, 2016 available at http://www.wileyrein.com/professionals-BertRein.html.     

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