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On second look, Supreme Court upholds UT Austin’s consideration of race for some admissions

June 24th, 2016  |  Cynthia L. Hackerott

Addressing the case for a second time, the U.S. Supreme Court held, 4-3, that the University of Texas at Austin’s (UT Austin) consideration of race in a portion of its admissions decisions was lawful under the Equal Protection Clause of the Fourteenth Amendment. Of note, the Court advised that the university does have a continuing obligation to satisfy the strict scrutiny burden by periodically reassessing its admission program’s constitutionality, and efficacy, in light of the school’s experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than necessary in meeting its compelling interests. Justices Ginsburg, Breyer, and Sotomayor joined in Justice Kennedy’s majority opinion. Justice Alito’s dissent was joined by Chief Justice Roberts and Justice Thomas. Justice Thomas also wrote a separate dissent. Justice Kagan took no part in the consideration or decision of either the most recent petition or the Court’s June 2013 decision in this case due to her involvement with it when she was the U.S. Solicitor General. (Fisher v. University of Texas at Austin, Dkt No 14–981, June 23, 2016)

In a 2013 ruling, the High Court found that lower courts had erred in giving deference to the university’s assertion that its consideration of race in the admissions process satisfied the narrow tailoring prong of strict scrutiny (97 EPD ¶44,850). On remand, a Fifth Circuit panel ruled, 2-1, that UT Austin presented sufficient evidence to prove that its admissions program is narrowly tailored to achieve the compelling state interest of the educational benefits of diversity (98 EPD ¶45,109). The Fifth Circuit denied Fisher’s request for an en banc rehearing. This time, the Supreme Court affirmed the Fifth Circuit’s decision.

Relevant precedent. While the cases arose in the context of higher education, the ultimate outcome of the case could have a significant impact on the use of affirmative action in a number of areas, including employment and government contracting. Prior to its 2013 decision in the present case, the last time the High Court addressed the issue of affirmative action in higher education admissions was in June 2003 when it upheld, by a 5-4 vote, the University of Michigan’s consideration of race as one of many “plus factors” in its law school admissions policy that considered the overall individual contribution of each candidate (Grutter v Bollinger, 84 EPD ¶41,415).

In contrast, on that same day in a 6-3 decision, the Court held that the University of Michigan’s undergraduate admissions policy, which automatically awarded points to applicants from certain racial minority groups, violated the Equal Protection Clause (Gratz v Bollinger, 84 EPD ¶41,416). Previously in Regents of Univ of Cal v Bakke (17 EPD ¶8402 (1978)), Justice Powell wrote in his solo opinion that the attainment of a “diverse student body” is a compelling state interest for an institution of higher education. The Court endorsed this position in Grutter, and found that the law school’s policy was narrowly tailored to achieve the compelling state interest of a diverse student body, but found in Gratz that the undergraduate policy was not.

Texas policy. UT Austin uses an undergraduate admissions system containing two components, Justice Kennedy explained. First, as required by Texas’ Top Ten Percent Law, it offers admission to any students who graduate from a Texas high school in the top 10 percent of their class. It then fills the remainder of its incoming freshman class, roughly 25 percent, by combining an applicant’s “Academic Index”—the student’s SAT score and high school academic performance—with the applicant’s “Personal Achievement Index,” a holistic review containing numerous factors, including race. The University adopted its current admissions process in 2004, after a year-long-study of its admissions process—undertaken in the wake of Grutter and Gratz—led it to conclude that its prior race-neutral system did not reach its goal of providing the educational benefits of diversity to its undergraduate students.

Abigail Fisher, a white Texas resident, sued the university after being denied a spot in 2008. Because she did not graduate in the top ten percent of her high school class, she did not qualify for automatic admission under the Top Ten Percent Plan; rather, she was considered under the holistic review program. Fisher alleged that the university’s consideration of race as part of its holistic review process disadvantaged her and other Caucasian applicants, in violation of the Equal Protection Clause.

Controlling principles. The Court’s 2013 ruling in Fisher I (also written by Justice Kennedy) set forth three controlling principles for assessing the constitutionality of a public university’s affirmative action program. First, a university may not consider race “unless the admissions process can withstand strict scrutiny,” i.e., it must show that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary” to accomplish that purpose. Second, “the decision to pursue the educational benefits that flow from student body diversity is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper.” Third, when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals, the school bears the burden of demonstrating that “available” and “workable” “race-neutral alternatives” do not suffice.

Percentage plan unchallenged. Here, UT Austin’s approach to admissions gave rise to “an unusual consequence,” Kennedy observed. The component with the largest impact on Fisher’s chances of admission was not the school’s consideration of race under its holistic review process but the Top Ten Percent Plan. Because she did not challenge the percentage part of the plan, the record is devoid of evidence of its impact on diversity. Yet, remand for further factfinding would serve little purpose because, at the time she applied for admission, the current plan had been in effect only three years and, in any event, the university lacked authority to alter the percentage plan, which was mandated by the Texas Legislature. These circumstances refuted any criticism that UT Austin did not make good faith efforts to comply with the law.

Obligation to engage in ongoing review. Nevertheless, the university has a continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances, the Court cautioned. “The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement,” it said. To this end, the university must tailor its approach in light of changing circumstances through regular evaluation of data and consideration of student experiences, all the while ensuring that race plays no greater role than is necessary to meet its compelling interest.

“The type of data collected, and the manner in which it is considered, will have a significant bearing on how the University must shape its admissions policy to satisfy strict scrutiny in the years to come,” Kennedy wrote.

Noting that UT Austin engages in periodic reassessment of the constitutionality, and efficacy, of its admissions program, the Court advised that “[g]oing forward, that assessment must be undertaken in light of the experience the school has accumulated and the data it has gathered since the adoption of its admissions plan.”

“As the University examines this data, it should remain mindful that diversity takes many forms,” the Court continued. “Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the University values.”

Compelling interest. The issue currently before the Court, however, was necessarily limited to the narrow question of whether Fisher has shown by a preponderance of the evidence that she was denied equal treatment at the time her application was rejected. This she failed to do.

Rejecting her claim that the university did not articulate its compelling interest with sufficient clarity because it has failed to state more precisely what level of minority enrollment would constitute a “critical mass,” the Court explained that the compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students, but an interest in obtaining “the educational benefits that flow from student body diversity.” Given that the university is prohibited from seeking a particular number or quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained.

Still, asserting an interest in the educational benefits of diversity writ large is insufficient, the Court cautioned. A university’s goals cannot be elusory or amorphous; rather, they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.

In this case, UT Austin articulated concrete and precise goals— including ending stereotypes, promoting “cross-racial understanding,” preparing students for “an increasingly diverse workforce and society,” and cultivating leaders with “legitimacy in the eyes of the citizenry”that mirror the compelling interest the Court has approved in prior cases. Moreover, the university gave a “reasoned, principled explanation” for its decision in a 39-page proposal written after a year-long study revealed that its race-neutral policies and programs did not meet its goals.

Narrow tailoring. The Court was also disagreed with Fisher’s assertion that UT Austin need not consider race because it had already “achieved critical mass” by 2003 under the Top Ten Percent Plan and race-neutral holistic review. The university studied and deliberated for months, concluding that race-neutral programs had not achieved the university’s diversity goals, a conclusion supported by significant statistical and anecdotal evidence.

In addition, the Court was not persuaded by Fisher’s argument that it was unnecessary to consider race because such consideration had only a minor impact on the number of minority students the school admitted. The consideration of race here has had a meaningful, if still limited, effect on freshman class diversity, the Court pointed out. That race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality, Kennedy wrote.

Finally, the Court was unconvinced by Fisher’s argument that there were numerous other race-neutral means to achieve the university’s goals. The record showed that, as of the time of her application, none of those alternatives was a workable means of attaining the university’s educational goals.

Alito dissent. “Something strange has happened since our prior decision in this case,” Justice Alito wrote in the first line of his 51-page dissent. In Alito’s view, UT Austin failed to meet requirements of strict scrutiny demanded in Fisher I.  “Even though UT has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though UT’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that UT has met its heavy burden,” Alito asserted, adding, “This conclusion is remarkable—and remarkably wrong.”

Thomas dissent. While joining Alito’s dissent, Justice Thomas wrote a separate, two-paragraph dissent to reaffirm his opinion (articulated in his concurrence in Fisher I) that a state’s use of race in higher education admissions decisions “‘is categorically prohibited by the Equal Protection Clause.’” According to Thomas (again quoting his Fisher I concurrence), “that constitutional imperative does not change in the face of a ‘faddish theor[y]’ that racial discrimination may produce ‘educational benefits.’” Therefore, he would overrule Grutter and reverse the Fifth Circuit’s judgment in the present case.

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