The Latest on Affirmative Action in Higher Education

Last week, the U.S. Supreme Court remanded a race-based admissions case concerning the University of Texas to the Fifth Circuit Court of Appeals, finding that the Fifth Circuit did not appropriately apply the “strict scrutiny” standard in evaluating the university’s admissions policy. The policy at issue in the case was established by UT in 2004 and explicitly considered race as part of the university’s “holistic metric of a candidate’s potential contribution” to the university. Candidates for admission are asked to classify themselves as belonging to one of five predefined racial categories on their application. According to the opinion, race is not assigned a numerical value, but it is undisputed among the parties that race is a meaningful factor.

In 2008, the plaintiff in this case applied for admission to the University of Texas and was rejected. She alleged that had it not been for the university’s decision to use race as a factor in its admissions policy, she would have been admitted. She filed a lawsuit in the U.S. District Court for the Western District of Texas asserting that the university’s race-conscious admissions policy violated the Equal Protection Clause. The District Court granted summary judgment to the university, and the Fifth Circuit affirmed, finding that the U.S. Supreme Court’s decision in Grutter v. Bollinger, 539 U.S. 306 (2003) required courts to give substantial deference to the university in both defining the compelling interest in student body diversity and in deciding whether its plan was narrowly tailored to achieve its goal.

The U.S. Supreme Court disagreed, explaining that though GrutterĀ did allow some, though not complete, deference to a university’s judgment regarding the educational benefits that flow from a diverse student body, courts must still ensure that there is a reasoned, principled explanation for the university’s conclusion. Once the university has established that its goal of diversity meets the strict scrutiny standard, then it is up to the courts, not the university itself, to ensure that the means chosen to accomplish that goal are narrowly tailored to meet that purpose. The notion of narrow tailoring requires a reviewing court to verify that it is necessary for a university to use race as a factor in achieving its goal of student body diversity. The Court reaffirmed that though narrow tailoring does not require a university to show that it exhausted every conceivable race-neutral alternative, it does require a court to fully examine the use of alternatives and not simply defer to the university’s consideration of them. The reviewing court must be satisfied that no workable race-neutral alternatives would suffice to meet the university’s goals.

In this case, the Court determined that the Fifth Circuit Court of Appeals did not perform such an analysis, but rather, improperly found that the plaintiff could only challenge whether the university acted in good faith by making the decision to use a race-conscious admissions policy, and in considering that challenge, the Fifth Circuit presumed that the university did in fact act in good faith, leaving the burden to rebut that presumption to the plaintiff. The Supreme Court held that good faith on the part of a university does not forgive the impermissible use of race, and strict scrutiny requires a close analysis of the admissions policy by the lower court without such deference to the university.

There was, of course, no final determination regarding the constitutionality of UT’s admissions policy. That will come later by the Fifth Circuit, and unless the Fifth Circuit somehow misapplies the Supreme Court’s analysis in this case, the Supreme Court is likely to let the Fifth Circuit’s decision stand. So what does this do? First, it shows that Grutter is still good law and that there is still, at least for now, a mechanism for higher education institutions to consider race in their admissions policies. Higher education administrators, of course, call this a win for them. Second, and most importantly in my opinion, it reminds us again that after all of these years, even in the 21st century, race is still at the forefront of far too many discussions. We’ve come so far, and yet, have so far to go when it comes to race relations in the U.S. As Justice Roberts wrote in Parents Involved in Community Schools v. Seattle School District, 551 U.S. 701, 748 (2007) “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” How could something sound so easy, yet be so difficult?

You can read the full opinion in Fisher v. University of Texas here.


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