Fisher v. University of Texas at Austin, No. 14-981 (U.S. Jun.23, 2016)
Abstract: The U.S. Supreme Court, in a 4-3 split, upheld the University of Texas at Austin’s (UTA) undergraduate admissions policy that considers race, along with a number of other factors, in determining which applicants to admit to the university. The four justice majority concluded that UTA’s race-conscious admissions program passed constitutional muster under the Fourteenth Amendment’s Equal Protection Clause.
Justice Kennedy, joined by Justices Ginsburg, Breyer, and Sotomayor, delivered the Court’s opinion. Justice Thomas filed a dissenting opinion. Justice Alito, joined by Chief Justice Roberts and Justice Thomas, filed a separate dissenting opinion.
Facts/Issues: Abigail Fisher, a white applicant who did not graduate in the top ten percent of her class, was denied admission to UTA in 2008 under UTA’s “holistic review” program. Although race is not assigned a numerical value under UTA’s holistic review program, UTA is committed to increasing minority enrollment – a goal which it terms “critical mass.”
UTA’s holistic review program was adopted after the Fifth Circuit invalidated a system based on a numerical score involving academic performance and race in Hopwood v. Texas, 78 F.3d 932 (1996). After Hopwood, state lawmakers adopted the Top Ten Percent Law, which grants automatic admission to students in the top 10% of their high school class. Together, these programs produced a more racially diverse student body at UTA than had existed pre-Hopwood.
But after the Supreme Court’s decision in Grutter v. Bollinger, 539 U.S. 306, upheld the use of race in holistic admissions plans, UTA restored a racial component to its program. Race was added as a factor to UTA’s “personal achievement index,” a mix of leadership qualities, extracurricular activities, work and service experience, and special circumstances.
That index, known as the PAI, and a separate academic index are used on a matrix to grant admission to applicants who do not get in through the Top Ten Percent law. Fisher sued UTA and school officials in federal district court, alleging that UTA’s consideration of race in admissions violated the Fourteenth Amendment’s Equal Protection Clause. The district court granted summary judgment to UTA.
Affirming, the Fifth Circuit held that Grutter required courts to give substantial deference to UTA, 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 Fifth Circuit upheld UTA’s admissions plan. Fisher appealed.
In a 7-1 decision (Fisher I), the U.S. Supreme Court vacated the Fifth Circuit’s decision upholding the constitutionality of UTA’s admission policy, because “the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and . . . Bakke . . . .” It remanded the case back to the Fifth Circuit for further proceedings consistent with the Court’s opinion. Justice Kennedy wrote the majority opinion.
The Majority noted that the line of cases upholding the use of race in university admissions, when it is narrowly tailored to promote the compelling governmental interest in the educational benefits that flow from a diverse student body, had not been challenged. This “strict scrutiny” analysis requires a court to conduct an exacting analysis, which the Supreme Court found the Fifth Circuit had not done. The Court directed the Fifth Circuit to “assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”
After the case was remanded, in a 2-1 split, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled that the undergraduate admissions policy of the UTA does not violate the Fourteenth Amendment’s Equal Protection Clause.
The Fifth Circuit panel majority, following the U.S. Supreme Court’s Fisher I instructions, subjected UTA’s admissions policy to a rigorous “strict scrutiny” analysis. It concluded that to “deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter.” It found that UT’s “holistic review,” in which race is considered as one of a number of factors, “is a necessary complement to the Top Ten Percent Plan, enabling it to operate without reducing itself to a cover for a quota system; that in doing so, its limited use of race is narrowly tailored to this role — as small a part as possible for the Plan to succeed.”
Fisher appealed and the United States Supreme Court granted certiorari for second time.
Ruling/Rationale: The Majority, in affirming the U.S. Court of Appeals for the Fifth Circuit’s three-judge panel decision, began by indicating that the U.S. Supreme Court in Fisher I laid out three controlling principles to determining the constitutionality of a university’s “affirmative action program.”
First, “[r]ace may not be considered [by a University] unless the admissions process can withstand strict scrutiny.” This requires the University to demonstrate with clarity that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.”
Second, once a university gives “a reasoned, principled explanation” for its decision, deference must be given “to the University’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals.”
Third, Fisher I clarified that no deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals. Universities bear the ultimate burden of proving that the race-neutral alternatives that are both available and workable are insufficient to achieve diversity.
The Majority stressed that UTA’s program is unique, i.e., “sui generis”, because unlike other college admissions policies “it combines holistic review with a percentage plan.” As a result, it concluded that “[t]he component of the University’s admissions policy that had the largest impact on petitioner’s chances of admission was not the school’s consideration of race under its holistic-review process but rather the Top Ten Percent Plan.” It noted that the petitioner would have probably stood a better chance of being admitted if UTA had used a race-conscious review to select all applicants rather than reserving seats for those in the top 10% of their high school class.
The Majority found, however, that the petitioner had not challenged the “Top Ten Percent Plan” component and, thus, her acceptance of that plan complicated the Majority’s review. It pointed out that “[i]f the Court were to remand, therefore, further fact finding would be limited to a narrow 3 year sample, review of which might yield little insight.” It also reiterated that because is a state law UTA “lacks any authority to alter the role of the Top Ten Percent Plan in its admissions process.”
The Majority emphasized that UTA has a continuing burden to satisfy strict scrutiny, which requires it to engage “in periodic reassessment of the constitutionality, and efficacy, of its admissions program.” It also cautioned that as UTA examines its admissions data “it should remain mindful that diversity takes many forms” and avoid formalistic racial classifications.
The Majority stated that the core issue in the case was: “whether, drawing all reasonable inferences in her favor, petitioner has shown by a preponderance of the evidence that she was denied equal treatment at the time her application was rejected.” It rejected the petitioner’s argument that UTA had not articulated a compelling interest.
In response to this argument, the Majority said the following:
As this Court’s cases have made clear, however, the compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining ‘the educational benefits that flow’ from student body diversity.
The Majority also indicated that because UTA is prohibited from seeking a 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.
The Majority likewise swept aside the petitioner’s argument that UTA “has no need to consider race because it had already ‘achieved critical mass’ by 2003 using the Top Ten Percent Plan and race-neutral holistic review.” It found that UTA “could not be faulted on this score.”
In addition, the Majority rejected the petitioner’s contention that “considering race was not necessary because such consideration has had only a ‘minimal impact’ in advancing the [University’s] compelling interest.” It asserted that the record did not support the petitioner’s argument.
The Majority disposed of the petitioner’s final argument that “there are numerous other available race-neutral means of achieving” the University’s compelling interest. The Majority indicated that “at the time of petitioner’s application, none of her proposed alternatives was a workable means for the University to attain the benefits of diversity it sought.”
Finally, the Majority warned UTA to remain vigilant regarding its admissions policy, saying:
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 is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.
In his dissent, Justice Alito remarked on the Majority’s failure to hold UTA to the strict scrutiny standard that the Court had mandated on remand in Fisher I. The strict scrutiny standard required that UTA show that its use of race and ethnicity in admissions decisions serves compelling interests and that its plan is narrowly tailored to achieve those ends. The burden on UTA under this strict scrutiny analysis was thus to 1) identify the interests justifying its plan with enough specificity to permit a reviewing court to determine whether the requirements of strict scrutiny were met, and 2) to show that those requirements were in fact satisfied. Justice Alito reiterated that the Court had previously rejected UT’s argument that it should defer to UT’s judgment on those matters.
At the core of his argument, Justice Alito maintained that because UTA failed to identify with any degree of specificity, the interests that its use of race-based admissions decisions were supposed to serve, or that those interests were in fact being served, UTA cannot satisfy strict scrutiny and therefore judgment should be entered in favor of the petitioner. He positioned his argument from a string of precedent denoting racial neutrality as the goal of the Equal Protection Clause.
Utilizing a rigid level of scrutiny as a starting point, Justice Alito stated that UTA’s goal of reaching a “critical mass” of underrepresented minority students without a reasonable definition of the term did not suffice as a specific interest. He maintained that the University must offer some sort of concrete interest to be reviewed by the Court. Moreover, he maintained that UTA’s other articulated goals, “the destruction of stereotypes, the promotion of cross-racial understanding, the preparation of a student body for an increasingly diverse workforce and society, and the cultivation of a set of leaders with legitimacy in the eyes of the citizenry,” were not concrete or precise because they offered no limiting function and thus could not be considered “narrowly tailored”.
Justice Alito went on to address four separate and specific goals that UTA had advanced throughout the course of litigation: demographic parity, classroom diversity, intraracial diversity, and avoiding racial isolation. In his discussion of demographic parity, Alito highlighted the fact that UTA had represented two different positions on the matter, first stating that the differences between the racial makeup of the University’s undergraduate population and the state’s population prevented UTA from “fully achieving its mission,” and later stating that UTA’s “critical mass” was “not at all” determined by the demographics of Texas.
Addressing the first of UTA’s representations, Alito noted that any attempt in pursuing parity with state demographics was “outright racial balancing,” which the Court had consistently found to be unconstitutional. In addressing the second representation, Justice Alito reasoned that even if demographic disparity were just one of many factors that gave cause for concern, the goal of seeking to reduce the disparity could not survive the strict scrutiny test because there was no logical stopping point short of racial balancing.
With regard to classroom diversity, Justice Alito’s main point was that merely identifying a disparity in classroom diversity was not enough to satisfy strict scrutiny if UTA could not identify what level of classroom diversity it would deem sufficient.
Next, Justice Alito addressed UTA’s interest in intraracial diversity, coined “diversity within diversity” by the respondents. UTA’s argument was that students admitted under the Top Ten Percent Plan tended to come from less well-funded, racially identifiable (majority-minority) schools and, as a result, were not totally representative of the race. Using a race-based admissions process in addition to the Top Ten Percent Plan would, in the eyes of UTA, permit the school to admit not only minorities from poor families, but from affluent families as well. Justice Alito posited that this desire for intraracial diversity rested on the assumption that there was something wrong with minority students admitted through the Top Ten Percent Plan because they were from lesser schools.
Justice Alito focused on the Court Majority’s embrace of UTA’s interest in avoiding feelings of “loneliness and isolation” among minority students. Again, he reasoned that if state demographics were the driving force behind UTA seeking to create demographic parity to avoid isolation, it was engaging in impermissible racial balancing. Further, if UTA was not using demographics as a test, then it did not make sense for Asian-American students to not be classified as an underrepresented minority group.
Furthermore, Justice Alito attacked the Majority’s argument that UTA could not have adopted any race-neutral alternatives that would have been similarly workable for the University to attain the benefits of diversity that it sought. He argued that UTA had not proved (or had in fact disproved) that its race-conscious holistic review had helped UTA achieve its diversity objectives any better than a race-blind review would have. Alito highlighted that, on assumption of similar statistics to 2004 when race was not a factor in UTA admissions, race would have been a determinative factor for only 15 African American students and 18 Hispanic students in 2008. He further stated that because UTA collected no data on the students admitted under the Top Ten Percent Plan and those admitted under the race-based admissions process, it was impossible for UTA to demonstrate that its procedure was narrowly tailored to meet its desired objectives.
Finally, Justice Alito discussed the majority’s three reasons for breaking the strict scrutiny standard. In discussing the Majority’s stance that the further fact-finding that would occur on remand would yield little insight, Justice Alito reasoned that UTA was required to identify evidence that race-based admissions were necessary to achieve the desired educational outcome before it put them in place, not after. In discussing the majority viewpoint that the University had no reason to keep extensive data on students admitted under the Top Ten Percent Plan because it had no control over the plan, Alito emphasized that UTA had been long aware that it bore the burden of justifying racial discrimination under strict scrutiny and had every reason to keep the data. Lastly, in discussing the majority’s stance that the litigation had persisted for many years and the case offered little prospective guidance, Justice Alito insisted that the Court cannot side with UTA “simply because it is tired of this case.”
Fisher v. University of Texas at Austin, No. 14-981 (U.S. Jun.23, 2016)
[Editor’s Note: Shortly after the U.S. Supreme Court’s decision in Fisher, Legal Clips published a summary of the National School Boards Association’s statement reacting to the ruling. In that statement, NSBA Executive Director Thomas J. Gentzel said, “Diversity positively affects learning outcomes for all students and benefits schools, communities, and our country as a whole.” He added, “It takes dedicated efforts to achieve racial, ethnic, and socioeconomic diversity and NSBA is pleased that the Court affirmed its longstanding principles in support of policies and practices that foster diversity and integration.”
Also commenting on the Fisher decision, NSBA General Counsel Francisco Negrón said, “Inclusion goals and diversity efforts benefit the educational outcomes and future success of all students, especially underrepresented minorities.” Negrón continued, “The Court’s decision rightfully recognized the achievement of educational benefits of diversity for all students as a constitutionally permitted academic goal.”]