Last Friday, the U.S. Department of Education and U.S. Department of Justice issued a joint “Dear Colleague Letter” addressing the impact of Fisher v. University of Texas, the recent Supreme Court decision involving the use of race in university admissions. As we previously reported, the decision reaffirmed a higher education institution’s ability to determine that achieving the educational benefits of diversity is a sufficiently compelling objective to justify the consideration of race as one of many factors in conducting a holistic review of applicant files. The joint letter confirms these principles.
Through a series of questions and answers, the letter states that the Supreme Court upheld an institution’s right to consider race as a factor when making admissions decisions so long as the consideration of race is “narrowly tailored to meet the compelling interest in diversity, including that available, workable race-neutral alternatives do not suffice.” The letter also confirmed that the decision was consistent with the Court’s 2003 landmark decision in Grutter v. Bollinger. However, it warned that while a reviewing court can take into account an institution’s experience and expertise in determining whether attaining the educational benefits of diversity is a compelling interest for purposes of the applicable strict scrutiny analysis, it may not defer to the institution’s judgment with regard to whether admissions practices are narrowly tailored to meet that objective. Finally, the letter states that colleges, universities, and school districts may continue to rely on the departments’ 2011 documents on this issue for higher education and K-12 because those guidance documents “can continue to provide valuable guidance to higher education institutions, school districts, and K-12 schools seeking to achieve a diverse student body.”
This guidance, while not surprising, is helpful to the extent it confirms that Fisher did not alter the landscape of the lawful use of race in university admissions. While the Court remanded the case back to the Fifth Circuit Court of Appeals, it nonetheless reaffirmed, at least for now, that having a diverse student body is a compelling government interest that can be achieved through an admissions policy that is narrowly tailored to satisfy that interest. Colleges and universities may therefore continue to consider race in their admissions processes in a way that is consistent with Fisher and other relevant Supreme Court precedent. As part of this analysis, institutions of higher education should take this opportunity to review their current admissions and other programs that consider race to assess how they fare under the strict scrutiny standards set forth in Fisher, and continue to consider whether race-neutral alternatives would allow them to meet their diversity goals.
We will continue to monitor the Fisher case on remand, as well as any other developments in this area.