Fisher v. University of Texas at Austin, No. 09-50822 (5th Cir. July 15, 2014)
Abstract: In a 2-1 split, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has ruled that the undergraduate admissions policy of the University of Texas at Austin (UT) does not violate the Fourteenth Amendment’s Equal Protection Clause. The Fifth Circuit panel majority, following the U.S. Supreme Court’s instructions, subjected UT’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.”
Facts/Issues: Abigail Fisher, a white applicant, was denied admission to UT in 2008 under UT’s “holistic review” program. Although race is not assigned a numerical value under UT’s holistic review program, UT 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 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 UT 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’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 UT and school officials in federal district court, alleging that UT’s consideration of race in admissions violated the Fourteenth Amendment’s Equal Protection Clause. The district court granted summary judgment to UT.
Affirming, the Fifth Circuit held that Grutter required courts to give substantial deference to UT, 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, Fifth Circuit upheld UT’s admissions plan. Fisher appealed.
In a 7-1 decision, the U.S. Supreme Court vacated the Fifth Circuit’s decision upholding the constitutionality of UT’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 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, 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.”
Ruling Rationale: On remand, the Fifth Circuit panel’s majority affirmed the district court’s grant of summary judgment to UT, rejecting Fisher’s claim that UT’s race-conscious admissions policy violated the Fourteenth Amendment. The majority, in accordance with the Supreme Court’s instructions, applied “more exacting scrutiny” to UT’s admissions efforts to achieve diversity.
Before addressing the issue of whether UT’s race consciousness admissions policy survived strict scrutiny, the majority disposed of UT’s contention that the Supreme Court’s decision required the Fifth Circuit to return the case to the district court for additional discovery based on the Supreme Court’s holding regarding scrutiny and deference. Given that there were no new issues of fact or need for additional discovery, it concluded that remand to the district court would result in a “duplication of effort.” The panel majority, therefore, denied UT’s motion for remand.
Commencing its strict scrutiny analysis, the panel majority repeated the Supreme Court’s warning that “[s]trict scrutiny must not be strict in theory, but fatal in fact, yet it must also not be strict in theory but feeble in fact.” It concluded, based on the data in the record, that the “holistic review” of “what little remains after over 80% of the class is admitted on class rank alone — does not, as claimed, function as an open gate to boost minority headcount for a racial quota.” Instead, the majority found: “Minorities being under-represented in holistic review admission relative to the impact of holistic review on the class as a whole holds true almost without exception for both blacks and Hispanics for every year from 1996 – 2008, ….”
In response to the plaintiff’s assertion that UT failed to seek race neutral alternatives in seeking the goal of diversity, the majority stated that “this record shows that UT Austin implemented every race-neutral effort that its detractors now insist must be exhausted prior to adopting a race-conscious admissions program — in addition to an automatic admissions plan not required under Grutter that admits over 80% of the student body with no facial use of race at all.” It found that the “holistic review” component of the admissions policy complements the “top Ten Percent” component’s contribution to the goal of diversity “by mitigating in an important way the effects of the single dimension process”, and “its limited use of race is narrowly tailored to this role ….”
The panel majority rejected Fisher’s argument that a race-conscious admissions policy was no longer necessary because UT had reached admission of a “critical mass” of minority students at the time she applied. Instead, it concluded that UT “demonstrated a permissible goal of achieving the educational benefits of diversity within that university’s distinct mission, not seeking a percentage of minority students that reaches some arbitrary size.” It stressed that Fisher’s argument failed to take into account that over 80% of UT’s students are admitted “without facial consideration of race as any part of narrow tailoring, and critically refuses to accept that the process adopted for the remaining 20% is essential.” The majority pointed out that the argument rested on the “untenable premise that a Grutter plan for 100% of the admissions is to be preferred.”
The panel majority rejected Fisher’s insistence that while the “holistic review” component “may be a necessary and ameliorating complement to the Top Ten Percent Plan,” UT has failed to show that the use of race as a factor is needed because “the Plan produces sufficient numbers of minorities for critical mass.” The panel majority responded:
To conclude otherwise is to narrow its focus to a tally of skin colors produced in defiance of Justice Kennedy’s opinion for the Court which eschewed the narrow metric of numbers and turned the focus upon individuals. This powerful charge does not deny the relevance of race. We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school — not a proffer of societal discrimination in justification for use of race, but a search for students with a range of skills, experiences, and performances — one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from whence they came.
Dissent: The dissenting judge believed that the race-conscious “holistic review” component of the admissions policy was not narrowly tailored to achieve the goal of diversity. The judge argued that in the Supreme Court’s decision vacating the Fifth Circuit panel’s previous ruling, the Supreme Court had ordered the Fifth Circuit not to give any deference to UT’s claims that its use of race is narrowly tailored. He stated: “This deference is squarely at odds with the central lesson of Fisher.” He added, “A proper strict scrutiny analysis, affording the University ‘no deference’ on its narrow tailoring claims, compels the conclusion that the University’s race-conscious admissions process does not survive strict scrutiny.”
The dissenting judge agreed with Fisher that UT was required to seek other race-neutral options to achieve diversity, because as Justice Kennedy stated in his concurrence in Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007), the use of racial classifications is permissible only as a “last resort to achieve a compelling interest.” According to the judge, the panel majority entirely overlooks UT’s failure to define its “critical mass” objective for the purposes of assessing narrow tailoring. “This is the crux of this case — absent a meaningful explanation of its desired ends, the University cannot prove narrow tailoring under its strict scrutiny burden.”
The dissenting judge, therefore, concluded: “The exacting scrutiny required by the Supreme Court’s ‘broader equal protection jurisprudence’ is entirely absent from today’s opinion, which holds that the University has proven narrow tailoring even though it has failed to meaningfully articulate its diversity goals.” While conceding that the majority was correct that a “race-conscious admissions plan need not have a ‘dramatic or lopsided impact’ on minority enrollment numbers to survive strict scrutiny,” he stressed that UT could only “prove the necessity of its racial classification” by providing a meaningful explanation of “how a small, marginal increase in minority admissions is necessary to achieving its diversity goals.”
The dissenting judge found none of UT’s strict scrutiny arguments sufficient that the policy is narrowly tailored, because those arguments either overlook “a more narrowly tailored alternative” or fail to articulate how “this specific use of racial classification advances the University’s objective.” He said, “Because the role played by race in the admissions decision is essentially unknowable, I cannot find that these racial classifications are necessary or narrowly tailored to achieving the University’s interest in diversity.”
Like the majority, the dissent found the “review process captures the essence of the holistic diversity interest established in Bakke, validated in Grutter, and left intact by Fisher.” However, he found two flaws in UT’s claim that its own, internal, periodic review is sufficient to safeguard against any unconstitutional use of race:
First, strict scrutiny does not allow the judiciary to delegate wholesale to state actors the task of determining whether a race-conscious admissions policy continues to be necessary. Second, while the University correctly considers a range of factors in its assessment of the necessity of its use of race, it has still not explained to us how this consideration takes place.
Finally, the judge rejected UT’s assertion that its “holistic review” component was modeled on the admissions policy found constitutional in Grutter. He said, “Similarity to Grutter is not a narrow-tailoring talisman that insulates the University’s policy from strict scrutiny. The University’s burden is to prove that its own use of racial classifications is necessary and narrowly tailored for achieving its own diversity objectives.”
The dissent concluded that UT’s “holistic review” failed because UT was unable to articulate the connection between its diversity goal of “critical mass” and its race-conscious admissions process. He said, “The University’s failure to meet its strict scrutiny burden is a function of its undefined ends, not its choice to label those ends as ‘critical mass.’”
Fisher v. University of Texas at Austin, No. 09-50822 (5th Cir. July 15, 2014)
[Editor’s Note: In June 2013, Legal Clips summarized the U.S. Supreme Court’s 7-1 decision in Fisher, which vacated the Fifth Circuit’s decision upholding the constitutionality of UT’s admissions policy, and remanded the case back to the Fifth Circuit for further proceedings consistent with the Court’s opinion.
In November 2013, Legal Clips summarized an article in the Texas Tribune discussing the oral argument before the Fifth Circuit panel. Judge Emilio Garza, who wrote the dissenting opinion in the latest decision, presaged his criticism of the panel majority’s decision saying that “the definition of ‘critical mass’ that he heard during arguments was ‘tautological, circular or subjective.’” Judge Garza observed that the application of strict scrutiny creates an interesting problem since, under the law, the goals for diversity cannot be defined by a specific number.]