In Fisher v. UT, U.S. Supreme Court says Grutter is still good law, but vacates Fifth Circuit’s decision upholding university’s race-based admissions policy, saying it failed to apply strict scrutiny standard properly

Fisher v. University of Texas at Austin, No. 11-345 (U.S. Jun 24, 2013)


Abstract: In a 7-1 decision, the U.S. Supreme Court vacated the U.S. Court of Appeals for the Fifth Circuit’s decision upholding the constitutionality of the University of Texas’ admission policy, which considers race as one of many factors in undergraduate admissions 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 to the Fifth Circuit for further proceedings consistent with the Court’s opinion.

Justice Kennedy, joined by Chief Justice Roberts and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, delivered the Court’s opinion. Justices Scalia and Thomas filed concurring opinions. Justice Ginsburg filed a dissenting opinion. Justice Kagan took no part in consideration or decision of the case.

The Justice Kennedy-led majority took as “given” the Court’s previous decisions in Gratz v. Bollinger, 539 U. S. 244 (2003), Grutter v. Bollinger, 539 U. S. 306 (2003) and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), all of which “directly address the question of considering racial minority status as a positive or favorable factor in a university’s admissions process, with the goal of achieving the educational benefits of a more diverse student body.”

The majority noted that Grutter and Gratz had endorsed Justice Powell’s recognition in Bakke that:  “obtaining the educational benefits of ‘student body diversity is a compelling state interest that can justify the use of race in university admissions.’”

The majority also emphasized that the Equal Protection Clause “demands that racial classifications … be subjected to strict scrutiny,” and that “strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

The majority determined that the Fifth Circuit had confined its strict scrutiny “inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications and affirming the grant of summary judgment on that basis.” It concluded that strict scrutiny demanded that the Fifth Circuit “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.”

Noting that strict scrutiny must be neither “strict in theory, but fatal in fact,” nor “strict in theory but feeble in fact,” the majority vacated its decision and remanded the case to the Fifth Circuit for further proceedings consistent with its opinion.

Justice Scalia filed a one-paragraph concurrence noting that the Constitution prohibits government discrimination on the basis of race.  He noted that Ms. Fisher had not asked the Court to overrule Grutter‘s holding that a compelling interest in the educational benefits of diversity could justify racial preferences in university admissions, suggesting  that he would have voted to overrule that holding if she had.

Justice Thomas filed a 20-page concurrence stating that he would overrule Grutter and hold that a state’s use of race in higher education admissions is “categorically prohibited by the Equal Protection Clause.”  Thomas noted that application of the strict scrutiny standard “‘has proven automatically fatal’ in almost every case . . . . And rightly so.”

Finally, in her dissent, Justice Ginsberg expressed approval of the University of Texas’ admissions plan, carefully crafted to follow Grutter‘s model, and skepticism that “supposedly neutral alternatives” really could be “race unconscious.”  She would have affirmed the judgment of the Fifth Circuit.

Fisher v. University of Texas at Austin, No. 11-345 (U.S. Jun 24, 2013)

[Editor's Note: Stay tuned for further detailed  coverage of the Fisher decision.

In October 2012, Legal Clips provided a summary of oral arguments in Fisher v. University of Texas, which makes for excellent background reading.]