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SCOTUS will once again review application of strict scrutiny in university admissions case, but plaintiff’s alleged injury also merits discussion

June 30th, 2015  |  Cynthia L. Hackerott

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 withstands strict scrutiny (Fisher v University of Texas at Austin, Dkt No 14-981, cert granted June 29, 2015). 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 to cert again to determine whether the Fifth Circuit majority correctly followed the High Court’s instructions in reaching its conclusion.

Given that the precise injury for which the plaintiff in Fisher is seeking redress seems to extend beyond the denial of her specific application to UT Austin, it appears she, along with those groups that have filed amicus briefs on her behalf, are seeking a broad ruling from the High Court holding that any consideration of race in university admissions is unconstitutional – even though that consideration may not have been the reason the plaintiff herself was denied admission. Depending on the specific foundation, such a ruling could be useful in attacking affirmative action in other areas, including employment and government contracting.

Relevant precedent. The issue in this case 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 (65 EPD ¶43,366 (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, 84 EPD ¶41,415). In contrast, on that same day in a 6-3 decision, 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, 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. In 1997, the Texas legislature enacted the Top Ten Percent Law which is designed to increase diversity without taking race into account. The law, which is still in effect, 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.

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, 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 was a minority, the Fifth Circuit pointed out in its 2014 decision.

Previous rulings. A federal district court granted summary judgment to UT Austin. 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 its specific plan was narrowly tailored to achieve its stated goal. Applying that standard, the appeals court upheld the university’s admissions plan (98 EPD ¶45,109).

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 (97 EPD ¶44,850).

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 has 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.”

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 in this case, “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 their 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].”

What is the exact injury alleged by Fisher? In the Fifth Circuit decision now at issue before the Supreme Court, the appeals court found it could not consider the university’s arguments that Fisher lacked standing – despite their apparent merit – due to the Supreme Court’s failure to address the issue in the 2013 Fisher decision. As the Fifth Circuit explained in a footnote, the well-established law is that, in order to establish standing, a plaintiff must show that (1) she has suffered an injury in fact, (2) a causal connection exists between the injury and challenged conduct, and (3) a favorable decision is likely to redress the injury.

In challenging Fisher’s standing on remand, the university pointed out that Fisher graduated from another university in May 2012, thus rendering her claims for injunctive and declaratory relief moot. UT Austin also argued that there was no causal relationship between any use of race in the decision to deny her admission and the $100 application fee – a non-refundable expense faced by all applicants – thus, putting into doubt whether Fisher in fact suffered any monetary injury.

Moreover, as explained above, the Fifth Circuit also noted that, in the year that Fisher applied, her credentials would not have qualified her for admission even if she was a minority. A piece authored by Slate staff writer Jamelle Bouie and published on the day the High Court granted cert in this case for the second time, provides further detail on Fisher’s credentials as they related to UT’s consideration of her application for a spot at the university.

“What’s striking about this case—and what makes it frustrating to some observers—is the curious question of Fisher’s academic record. Put simply, as Nikole Hannah-Jones documented for ProPublica, affirmative action wasn’t her problem,” Bouie observes.

“Neither special circumstances nor grades were determinative. Of the 841 students admitted under these criteria, 47 had worse grades than Fisher, and 42 of them were white. On the other end, UT rejected 168 black and Latino students with scores equal to or better than Fisher’s,” he notes. According to Bouie, “[t]o call this discrimination is to say that Fisher was entitled to a space at the UT Austin, despite grades that didn’t make the cut. It’s worth pointing out that the university gave her the choice of transferring from a satellite school, which she rejected.”

In another footnote, the Fifth Circuit noted that “in her supplemental briefing Fisher argues only that she had suffered an ‘injury in fact.’ Instead of addressing redressability, she argues only that the question of remedies is a separate inquiry.” (citations omitted)

Although, in the Fifth Circuit’s view, the issue of standing “was squarely presented” to the Supreme Court, the High Court curiously failed to address it, and instead, remanded the case for a decision on the merits, having affirmed all of the Fifth Circuit’s previous decision except the appellate court’s application of strict scrutiny. As such, the Supreme Court implicitly found standing existed. Given that there were no changes in jurisdictional facts occurring since briefing in the Supreme Court, Fisher’s standing is “limited to challenging the injury she alleges she suffered — the use of race in UT Austin’s admissions program for the entering freshman class of Fall 2008,” the Fifth Circuit concluded.

This conclusion begs the question, “For what exactly is Fisher seeking redress?” Given the evidence that she would not have received an offer of admission regardless of her race, and her failure to address the issue of redressability before the Fifth Circuit, it appears that Fisher is claiming some sort of injury from that fact that race was considered at all in any aspect of the overall admissions process, regardless of whether the use of race was a factor/consideration in the specific admissions decision regarding her.

If this is an accurate assessment of Fisher’s claimed injury, it would seem that the main goal of this litigation is not to provide Fisher equitable relief in the form of her getting a spot, merited or not, as a student at UT Austin, but rather to get a Supreme Court ruling ending any use of race as a consideration – i.e. affirmative action – in state university admissions altogether. Indeed, the ProPublica article cited by Bouie (which has been updated to reflect the second Supreme Court grant of cert) asserts just that. And, if that’s the case, one wonders why the advocacy groups supporting this litigation couldn’t have found a plaintiff with a stronger individual injury claim to take up this cause.