Supreme Court tells Fifth Circuit to "Do-Over"

by Jackson Walker
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INTRODUCTION
On Monday, the United States Supreme Court issued its decision in the affirmative action case of Fisher v. University of Texas at Austin. In a 7-1 decision (Justice Kagan recused herself because she had previously worked on the case), the Court sent the case back to the Fifth Circuit for further review.
THE UT ADMISSIONS PROCESS
As described by the Supreme Court in its opinion, following the decisions in Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003), the University of Texas began using an admissions process that considers a student's personal achievements (leadership, work experience, awards, extracurricular activities, community service, and other special circumstances) and race as factors for admission. Race is not assigned a specific numerical value, but it is used.
Once the admissions applications have been scored, they are plotted on a grid. All students in the cells falling above a certain line are admitted, while all students below the line are not.
FACTUAL BACKGROUND
Abigail Fisher, a white applicant, applied for admission to the University in 2008 and was denied admission. She sued the University in the United States District Court for the Western District of Texas, alleging that the University's consideration of race in admissions violated the Equal Protection clause. The District Court granted summary judgment to the University and the Fifth Circuit affirmed, holding that Grutter required courts to give substantial deference to the University, both in defining the compelling interest and also in deciding whether the plan was narrowly tailored to achieve that interest.
THE FIFTH CIRCUIT'S DECISION
Reviewing the University's admissions process, the Fifth Circuit held that Fisher could challenge only "whether [the University's] decision to reintroduce race as a factor in admissions was made in good faith." The Fifth Circuit specifically declined to second-guess the University's program because that was a task it determined it was "ill-equipped to perform." The Fifth Circuit further reasoned that its review should be taken with deference to the University and thus it determined that the admissions process fell within "a constitutionally protected zone of discretion."
STRICT SCRUTINY MUST BE USED IN ALL PHASES OF REVIEW
Justice Kennedy wrote the decision for the Court and began the Court's analysis by quoting from Justice Powell in Bakke, stating that "[a]ny racial classification must meet strict scrutiny, for when government decisions 'touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.' "
The Supreme Court opined that the Fifth Circuit had fallen short of the necessary review because it limited its review to whether the University's decision to use race in the admissions process was made in good faith. Rejecting the "good faith" argument, the Supreme Court held that a University using racial classifications in its admissions process must establish that its goal of diversity is consistent with strict scrutiny and that there must be a further judicial determination that the admissions process meets strict scrutiny in its implementation.
The Court further held that while it is true that Grutter calls for deference to a University's determination that a diverse student body would serve its educational goals, deference should not be given in the strict review of the admissions process.  "Grutter made clear that it is for the courts, not for university administrators, to ensure that "[t]he means chosen to accomplish the [government's] asserted purpose must be specifically and narrowly framed to accomplish that purpose."
The Supreme Court also explained that narrow tailoring requires the reviewing court to verify that the use of race is necessary to achieve the educational benefits of diversity. To satisfy this requirement, courts must determine whether the stated purpose of diversity could be achieved without the use of racial classifications.
The Supreme Court vacated the judgment and remanded the case back to the Fifth Circuit for an analysis consistent with its opinion.
CONCLUSION
Although the educational benefits of diversity have been left standing by this decision, the Supreme Court sent a clear message that institutions of higher learning must now be prepared to establish in court that their admissions processes are narrowly tailored to meet the objective of a diverse student body.
While the case does not directly affect affirmative action plans in the private sector, the emphasis on demanding a justification based upon current conditions for consideration of race may have implications, particularly when the Office of Federal Contract Compliance Programs relies upon statistics in finding an employer violated Executive Order 11246. We will continue to review the implications of Fisher for our clients.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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