Breaking News1.jpgThis blog post was authored by Laura Schulkind and Erin Kunze


On Monday, June 24, 2013, the Supreme Court issued its long-awaited decision in Fisher v. University of Texas at Austin. However, the decision does little to alter the current legal standard by which race-conscious admissions policies are measured.  Rather, the Court reaffirmed prior decisions which hold that a university’s use of racial classifications in its admissions process must withstand “strict scrutiny” (i.e. must be narrowly tailored to serve a compelling state interest).  Because the Court concluded that the Court of Appeals gave too much deference to the University of Texas (“University”) in applying this exacting standard, it vacated the decision and remanded it back to the Fifth Circuit, with instructions to issue a new decision applying strict scrutiny in the manner directed by the Court.

In reaching its decision, the Court first agreed with the Fifth Circuit that the University demonstrated its admissions policy served a compelling state interest.  The Court accepted as given its 2003 holding in Grutter v. Bollinger that the educational benefits that flow from student body diversity serve a compelling state interest sufficient to justify the use of race in university admissions. (Fisher v. University of Texas at Austin, (2013) 570 U. S. ____, at 7 [citing Grutter v. Bollinger (2003) 539 U.S. 306, at 325].)  It also accepted the Fifth Circuit’s deference to the University’s judgment that its educational mission was served by promoting a diverse student body.  

However, the Court held that the Fifth Circuit erred in giving similar deference to the University’s determination that its race-conscious admissions policy was necessary to achieve the beneficial effects of diversity.  The Fifth Circuit concluded that the University acted in good-faith in considering its policy necessary, and deferred to its judgment.  The Supreme Court disagreed with this approach.  “Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”  (Id. at 10-11.)  Thus, as Justice Kennedy succinctly put it: “On this point, the University receives no deference.” (Id. at 10.)

Factual Background

The University of Texas at Austin considers race as one of various factors in its undergraduate admissions process in order to achieve a goal of “increasing racial minority enrollment” on its campus.  (Id. at 1.)  The University has undergone several iterations of admissions programs to achieve this goal.

Prior to 1996 the University explicitly considered race as a significant factor in admission.  In response to a 1996 Court of Appeals decision overruling this practice, the University adopted a race-neutral admissions plan, also designed to increase the diversity of its student body.  (Id. at 2 [citing Hopwood v. Texas (1996) 78 F.3d 932].)  Under the new plan, the University assessed applicants by rating them on an academic index as well as a “personal achievement index” (PAI).  (Id. at 2-3.)  The Personal Achievement Index scored students based on factors including  leadership, work experience, awards, extracurricular activities, community service  and “special circumstances that give insight into a student’s background” such as growing up in a single-parent house, speaking a language other than English at home, significant family responsibilities assumed by applicant, general socioeconomic condition of the student’s family.  (Id.)  At the same time, the Texas Legislature adopted “Top Ten Percent Laws” (Tex. Educ. Code Ann. section 51.803 (West 2009), which provide automatic admission to any student graduating in the top ten percent of their high school class at Texas high schools complying with certain standards.  (Id. at 3.) 

Subsequently, in response to the Supreme Court’s holdings in Grutter v. Bollinger (2003) 539 U.S. 306, which held that use of race as one of many “plus factors” in an admissions program may be constitutional, the University reincorporated the consideration of race in its admission process through the Personal Achievement Index. (Id. at 3.)  Students were asked to classify themselves from among five predefined racial categories on the admissions application.  To avoid any appearance of an impermissible goal or quota, the University did not give race a numeric value, but provided that race is a “meaningful factor” in the PAI, in order to achieve a “critical mass” of minority students.  (Id. at 4.) 

Fisher, a Caucasian female, applied for admission at the University in 2008, and was rejected.  (Id. at 1, 4.)  Fisher sued the University on the grounds that the school’s use of race in the admissions process violates the “Equal Protection Clause” of the 14th Amendment, which provides that states may not deny any person “equal protection of the laws.” (Id. at 1; U.S. Const. amend, XIV, section 1.)

The District Court granted summary judgment in favor of the University.  Fisher appealed, and the Fifth Circuit Court of Appeals affirmed the lower court’s ruling. It held that the Supreme Court’s ruling in Grutter required that the court give substantial deference to the University with regard to both prongs of the “strict scrutiny” test: whether the admissions policy served a compelling state interest, and whether its plan was narrowly tailored to achieve its stated goal.  The Supreme Court granted certiorari to review the Fifth Circuit holding.

The Supreme Court’s Holding

The Supreme Court determined that the Fifth Circuit misapplied its holding from Grutter.  The Court clarified that in applying the strict scrutiny test, courts may not defer to the University’s judgment that its program is narrowly tailored.  Rather, under judicial review, the University must make a showing that its plan to increase diversity is narrowly tailored to achieve that interest.  (Id. at 13.)  Narrow tailoring in this context requires that the reviewing court verify that it is ‘necessary’ for a university to use race to achieve the educational benefits of diversity.” (Id. at 10 [citing Bakke, 438 U.S., at 305].)  To meet the “necessity” standard, a court must ask whether a university “could achieve sufficient diversity without using racial classifications.” (Id. at 10.)  While this standard is quite stringent, the court offered some relief noting that the question does not require exhaustion of “every conceivable race-neutral alternative,” but serves as a requirement that the court examine, and not to defer to, a university’s determination of necessity.  (Id.)

Impact of Holding

While the Court’s decision did not make any significant changes to  the standard of review applied to race-conscious admission policies, it serves as a reminder of how exacting the standard of review is.  Indeed, as Justice Thomas noted in his concurrence, “[t]his most exacting standard has proven automatically fatal in almost every case.” (Id., at 2 (conc. opn. of Thomas, J.), internal quotes omitted.)  It remains to be seen whether this historically accurate observation also predicts the future of this case on remand. However, as noted above, the Court has made clear that the Fifth Circuit may not uphold the University’s policy unless it is, “satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”  The Fifth Circuit is therefore charged with reviewing the evidentiary record to determine whether it can support such a finding.

Further, while Justices Scalia and Thomas concurred in the decision, they made clear that they did so only because Fisher had not challenged the correctness of the Court’s prior decision in Grutter. (Id., at 1 (conc. opn of Thomas, J.); Id. at 1 (conc. opn. of Scalia, J.).)  Both justices expressed their view that student body diversity should not be considered a compelling state interest, and indicated that they would be prepared to overturn Grutter if given the opportunity.