Late last month, the U.S. Department of Education Office for Civil Rights and the Civil Rights Division of the U.S. Department of Justice jointly issued this “Dear Colleague” Letter and “Questions and Answer” to college and university presidents across the country as additional guidance to the U.S. Supreme Court’s recent decision in Fisher v. University of Texas at Austin. As I discussed here, the Fisher decision reaffirmed the use of strict scrutiny by courts in evaluating the constitutionality of race-based admission policies by institutions of higher education. A few of the substantive questions answered by the guidance are below:
1. Can institutions of higher education continue to take steps to achieve a diverse student body?
A: Yes. The Supreme Court’s ruling recognized that colleges and universities have a compelling interest in the educational benefits of a diverse student body, and can lawfully pursue that interest in their admissions programs. As the Supreme Court observed in Fisher and Grutter v. Bollinger, a racially and ethnically diverse student body promotes cross-racial understanding and classroom dialogue, reduces racial isolation, and helps to break down stereotypes.
2. Did the Supreme Court invalidate the use of race as a factor in higher education admissions or change the standard of scrutiny that courts must apply when evaluating such admissions programs?
A: No. An individual student’s race can be considered as one of several factors in higher education admissions as long as the admissions program meets the well-established “strict scrutiny” standard; specifically, the college or university must demonstrate that considering the race of individual applicants in its admissions program is narrowly tailored to meet the compelling interest in diversity, including that available, workable race-neutral alternatives do not suffice. The Supreme Court also clarified that courts reviewing admission policies must be satisfied that consideration of an individual student’s race in a college or university’s admission policy is needed to achieve diversity. The Court’s opinion does not address a college or university’s ability to promote diversity through other efforts that do not consider an individual’s race in admissions, such as engaging in targeted outreach and recruitment or partnering with high schools through pipeline programs to promote student body diversity.
3. Did the Supreme Court change what colleges and universities must do to narrowly tailor their admissions programs to meet the compelling interest in diversity?
A: No. The Court did not change the requirements articulated in Grutter v. Bollinger. Colleges and universities must demonstrate that the means chosen to achieve diversity are narrowly tailored. The Court reiterated that, among other things, prior to taking into account an individual student’s race in the admissions process, colleges and universities must determine that available, race-neutral alternatives do not suffice to achieve the benefits of diversity. And, a court reviewing an admissions program under legal challenge must – without deference to the college or university – be satisfied that the means chosen by the college or university are narrowly tailored to meet its diversity goal.
4. Did the Supreme Court strike down the University of Texas’ admissions program?
A: No. The Court’s decision neither upheld nor rejected the constitutionality of the University’s admissions program. Instead, the Court remanded the case to the Fifth Circuit to correctly evaluate the University’s admissions program under the well-established “strict scrutiny” standard, which requires the lower court to make the determination that the University’s program is narrowly tailored to achieve the compelling interest in diversity. In doing so, the lower court can take account of the University’s experience and expertise, but it may not defer to the University’s decision.
The new guidance also reiterates that the previously issued “Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education” and related “Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools” remain in effect.