U.S. Supreme Court upholds Grutter framework; tells Fifth Circuit in Fisher to apply strict scrutiny analysis again in race admissions case

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’ (UT) 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 majority noted that the line of cases upholding the use of race in university admissions when it is narrowly tailored to the compelling government 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, however, which the Supreme Court found the Fifth Circuit had not done.  The Court directed the Fifth Circuit to 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.”

Facts/Issues:  Abigail Fisher, a white applicant, was denied admission to the University of Texas at Austin in 2008 under the university’s “holistic review” program.  Although race is not assigned a numerical value under UT’s holistic review program, the University is committed to increasing minority enrollment – a goal which it terms “critical mass.”

UT’s holistic review program was adopted after the Fifth Circuit invalidated a system based on a numerical score academic performance and race in Hopwood v. Texas, 78 F.3d 932 (1996).  After that decision, state lawmakers to adopt the Top Ten Percent Law, which grants automatic admission to student in the top 10% of their high school class.  Together, these programs produced a more racially diverse student body at the University than had existed pre-Hopwood.

But after the Supreme Court’s Grutter decision upheld the use of race in holistic admissions plans, UT restored a racial component to its program. Race was added as a factor to UT-Austin’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 don’t get in through the Top Ten Percent law.

Fisher sued the university and school officials in federal district court, alleging that the university’s consideration of race in admis­sions violated the Fourteenth Amendment’s Equal Protection Clause.  The district court granted summary judgment to the university.   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 court upheld the university’s admissions plan.

Ruling/Rationale:  The Justice Kennedy-led majority took as “given” the standard laid out in 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.”

In Grutter and Gratz, the majority noted,  the Court 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.”

Under Grutter, explained the majority, a court defers to a university’s judgement that diversity in the student body is essential to its educational mission.  This showing establishes the “compelling interest” party of strict scrutiny.  But then the university must show that the admissions process meets strict scrutiny in its implementation by being narrowly tailored to the identified interest. “On this point, the University receives no deference.” 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.” Strict scrutiny demands 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)

NSBA offers insights on the implications of Fisher  for public schools in a panel discussion via webinar July 16, 2013.  Read more and register here.

[Editor's Note:  The Court's much-anticipated decision is being reported in a number of news outlets,  including Governing, which quoted NSBA General Counsel Francisco M. Negrón Jr.:  "The use of race-conscious measures to achieve educational benefits is still very much alive. . .  Public schools can still seek educational value of diversity."

NSBA joined the College Board in an amicus brief arguing that the court should avoid any dilution of Grutter that would undermine current diversity efforts used throughout our K-post-secondary public education system.  The brief explained that, given the needs of students to meet the demands of the 21st Century, including the need to be globally competitive, diverse learning opportunities have become an even more compelling educational need to which schools must respond.  

Legal Clips covers the NSBA amicus brief , the October oral argument, and the Court's significant end-of-term decisions.]

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