The case of Abigail Noel Fisher v. University of Texas at Austin in 2012 was a significant legal dispute over affirmative action in university admissions. Abigail Fisher, a white woman, claimed that the University of Texas (UT) had discriminated against her based on race when she was denied admission to the school. UT used an admissions policy that considered race as one factor among many for some applicants who were not automatically admitted under its Top Ten Percent Plan - which guarantees admission to students graduating from Texas high schools in roughly the top ten percent of their class regardless of their race or ethnicity. The Supreme Court ruled 7-1 to vacate and remand the Fifth Circuit's decision upholding UT's policy, stating it had failed to apply strict scrutiny in its examination of UT’s program. Strict scrutiny requires a compelling governmental interest and means narrowly tailored towards achieving this interest with no less restrictive alternative available.

In the dissenting opinion for Fisher v. University of Texas at Austin, Justice Alito, joined by Justices Scalia and Thomas, argued that the university's admission policy was not narrowly tailored to serve a compelling state interest as required by strict scrutiny. He criticized the majority for deferring too much to the university in defining its diversity goals and determining whether it had achieved them. According to him, such deference is inconsistent with strict scrutiny which requires courts to independently verify if race-based policies are necessary and effective in achieving their stated objectives. He also questioned whether racial diversity within individual classrooms was a compelling state interest that justified using race as an admissions factor. Furthermore, he expressed concerns about potential abuses of discretion given how difficult it would be for courts or applicants to challenge subjective assessments of "holistic" merit made by admissions officers who know applicants' races but do not have clear guidelines on how much weight they should give this factor compared with others like academic achievement or extracurricular involvement.