Legal Alert: Supreme Court Grants Review of University Affirmative Action Practice


In what will likely be the most significant decision regarding affirmative action since the U.S. Supreme Court's 2003 decision in Grutter v. Bollinger, 539 U.S. 306 (2003), the Court has granted certiorari in a case challenging the use of race in the undergraduate admission practices of the University of Texas. See Fisher v. University of Texas (cert. granted Feb. 21, 2012).

In Grutter, a 5-4 decision, the Court held that the University of Michigan Law School's use of race as a "plus" factor in making an individualized determination of admission to the law school is constitutional.

In Grutter, the Court held that student body diversity is a compelling state interest that can justify the use of race in university admissions. The Court then held that even if there is a compelling governmental interest in a diverse student body, the means to achieving this end must be narrowly tailored. To be narrowly tailored, a race-conscious admissions program cannot use quotas – it cannot insulate each category of applicants with certain desired qualifications from competition with all other applicants.

Instead a university may consider race or ethnicity only as a "plus" in a particular applicant's file. The Court held that the Law School's admissions program was narrowly tailored because it used race in a flexible way that considered the applicant's individual qualifications. The Court also noted that the law school considered other characteristics besides race and ethnicity that contribute to a diverse student body.

Please see full alert below for more information.

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