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High Court to again review 5th Circuit’s upholding of consideration of race in part of UT’s admissions decisions

By Cynthia L. Hackerott, J.D.

Granting cert for the second time in the case, the U.S. Supreme Court has agreed to review a 2014 decision in which the Fifth Circuit, following the High Court’s instructions to apply a more exacting standard on remand, determined that the University of Texas at Austin’s (UT Austin) consideration of race in a portion of its admissions decisions withstood strict scrutiny. 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. 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. The Supreme Court has granted review to determine whether the Fifth Circuit majority correctly followed the High Court’s instructions in reaching its conclusion. While this case arises in the context of higher education, its ultimate outcome could have a significant impact on the use of affirmative action in other areas, including employment and government contracting (Fisher v. University of Texas at Austin, Dkt No 14-981, cert. granted June 29, 2015).

Relevant precedent. The issue is whether the Supreme Court’s decisions that interpret the Equal Protection Clause of the Fourteenth Amendment permit UT Austin’s consideration of race in some of its undergraduate admissions decisions. Under the standard set forth by the US Supreme Court in Adarand Constructors Inc v. Pena (1995), to survive constitutional review, a government entity’s consideration of race has to meet strict scrutiny standards; thus, it must: (1) serve a compelling state interest; and (2) be narrowly tailored to achieve that interest.

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). On that same day in a 6-3 decision, in contrast, the Court held that the university’s undergraduate admissions policy, which automatically awarded points to applicants from certain racial minority groups, violated the Equal Protection Clause (Gratz v. Bollinger). Previously in Regents of Univ of Cal v. Bakke (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 it found in Gratz that the undergraduate policy was not.

Texas policy. In 1997, the Texas legislature enacted the Top Ten Percent Law, which is designed to increase diversity without taking race into account. Still in effect, the law mandates that Texas high school seniors in the top ten percent of their class be automatically admitted to any Texas state university. In 2004, with the Grutter ruling in mind, Texas added the consideration of race, among many factors, including achievements and experiences, to fill remaining slots at public universities. In the present ruling, the Fifth Circuit refers to this aspect of the admissions process as “the holistic review program.” Along with the consideration of race and these other factors, which are used to assign each applicant a Personal Achievement Index (PAI) score, the holistic program also takes into account an applicant’s Academic Index (AI) score, which is calculated based on the applicant’s standardized test scores, class rank, and high school coursework.

Abagail 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, which that year took 81 percent of the seats available for Texas residents. Rather, she was considered under the holistic review program and consequently was one of 17,131 applicants for the remaining 1,216 seats for Texas residents. However, in the year that Fisher applied, her AI score was too low to get in even if she had a perfect PAI score; thus, she would not have been admitted under the holistic program even if she were a minority, the Fifth Circuit pointed out in its 2014 decision.

Previous rulings. A federal district court granted summary judgment to the university. Affirming, the Fifth Circuit held that Grutter required courts to give substantial deference to the university, both in the definition of the compelling interest in diversity’s benefits and in deciding whether the university’s specific plan was narrowly tailored to achieve its stated goal. Applying that standard, the appeals court upheld the university’s admissions plan.

However, in its June 24, 2013, decision, the Supreme Court held, 7-1, that in applying the narrow tailoring aspect of strict scrutiny as articulated in Grutter and Bakke, the Fifth Circuit erred by giving deference to UT Austin’s assertion that the university’s way of considering race in its admissions process is constitutionally permissible. Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice, yet that is what the lower courts did in their rulings, the High Court observed in the majority opinion written by Justice Kennedy.

Thus, the Supreme Court remanded the case back to the Fifth Circuit for a more exacting analysis of the university’s admissions process. In so doing, the Court instructed the Fifth Circuit to assess whether the university had offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.

Fifth Circuit decision on remand. On remand, the appeals court, once again, found in favor of the university. “To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command—due only a courtesy salute in passing,” a majority of the Fifth Circuit panel wrote in a July 15, 2014 decision. Specifically, the majority found 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.

“[T]he backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass,” the Fifth Circuit majority wrote. “We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court.”

Fifth Circuit dissent. In a dissenting opinion, Judge Garza asserted that the majority did not correctly follow the High Court’s instructions and that UT Austin failed to show its actions were narrowly tailored to meet its stated goal. The majority’s ruling is “at odds with the central lesson” of the Supreme Court’s ruling, according to Garza, because it defers impermissibly to the university’s assertions regarding narrow tailoring. Under the Supreme Court’s ruling, “a state actor’s diversity goals must be sufficiently clear and definite such that a reviewing court can assess, without deference, whether its particular use of racial classifications is necessary and narrowly tailored to those goals,” he explained.

“Although the University has articulated its diversity goal as a ‘critical mass,’ surprisingly, it has failed to define this term in any objective manner,” Garza wrote. “Accordingly, it is impossible to determine whether the University’s use of racial classifications in its admissions process is narrowly tailored to its stated goal—essentially, its ends remain unknown.”

On November 12, 2014, the Fifth Circuit denied Fisher’s request for an en banc rehearing. Fisher filed her petition for cert with the High Court on February 10, 2015. On June 29, 2015, the High Court granted the petition. 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.

Question presented. In her petition, Fisher states the question presented to the Court as follows:

“Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment,” including the Court’s earlier decision in this case. Fisher argued that, on remand, the Fifth Circuit once again failed to properly apply strict scrutiny.

“Essentially ignoring the Court’s admonition to hold UT to the demanding burden articulated in its Equal Protection Clause precedent, the Fifth Circuit approved UT’s program under what amounts to a rational-basis analysis,” Fisher asserts in her petition.

Respondents’ arguments. In its response, UT Austin and the other respondents asserted that, “[t]he narrow, fact-specific question remaining in this case is whether the Fifth Circuit properly followed,” the Supreme Court’s instructions in determining whether the UT Austin has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity. “Presumably [the Supreme Court] would not have remanded the case for the Fifth Circuit to undertake that inquiry if it believed (as petitioner apparently does) that the answer was preordained,” the respondents wrote. “And despite the caricature that petitioner attacks, the Fifth Circuit’s actual opinion establishes that the court conscientiously followed this Court’s instructions in [its earlier decision].”