Plaintiffs Abigail Noel Fisher and Rachel Multer Michalewicz applied to the University of Texas at Austin in 2008 and were denied admission.

The two women, both white, filed suit, alleging that the university had discriminated against them on the basis of their race in violation of the Equal Protection Clause of the Fourteenth Amendment.

[9] She scored 1180 on her SAT (measured on the old 1600-point scale, because UT Austin did not consider the writing section in its undergraduate admissions decision for the 2008 incoming freshman class).

[7][11] In 2009, United States District Court judge Sam Sparks upheld the university's policy, finding that it meets the standards laid out in Grutter v.

Specifically, they were concerned with the university's arguments that Fisher would not have earned admission regardless of her race, that she had already graduated from college, and that she only named the $100 application fee as real damages.

[23] Justices Scalia, Alito, and Roberts asked many questions about the definition of a "critical mass", which Grutter named as the central measure of diversity.

Scalia started calling it a "critical cloud" after the university's lawyer failed, upon multiple requests, to define the central measure of diversity.

Writing for the majority, Justice Kennedy concluded that the Fifth Circuit failed to apply strict scrutiny in its decision affirming the admissions policy.

Instead, he wrote, the Fifth Circuit held that Fisher could only challenge "whether the University's decision to use race as an admissions factor 'was made in good faith.'

[25] Kennedy argued that per the Grutter ruling, the burden of evidence primarily lies with the university "to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity".

[27] Because the petitioner did not ask to overturn the holding in Grutter, that there is a compelling evidence in the educational benefits of diversity to justify racial preferences in university admissions, he joined with the majority in full.

[28] Justice Thomas wrote his own concurrence, stating his reasons for overturning Grutter, and ruled that the use of race in higher education admissions violated the Equal Protection Clause.

According to Justice Thomas, strict scrutiny had only been previously satisfied where the state actor was acting to protect national security or to remedy its own past discrimination.

In its decision, the majority wrote, "It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity.

[38] During oral arguments, Justice Scalia raised the mismatching theory and questioned whether black students admitted to top-tier schools suffer because the courses are too difficult.

"[39] The comments led to outcry from the University of Texas's African American students,[40] and spurred the creation of the Twitter hashtag #StayMadAbby.