The Supreme Court yesterday did not provide the bang many expected out of its Fisher v. Texas ruling, but it may have more far-reaching implications for universities. The long-term impact may be that courts require universities to make a stronger showing that they considered race-neutral means to achieve diversity before considering race in their admissions decisions.
The Court remanded Fisher v. Texas back to the Fifth Circuit, ruling that court’s decision to affirm the district court’s grant of summary judgment was incorrect. In doing so, the Supreme Court may have shown its hand, as the decision seems to accept the educational benefits derived from a diverse student body as a compelling state interest that would justify race-based admission decisions. This will be welcome news to many universities that are strongly in support of improving student-body diversity.
The Court, however, may make it tougher for university admissions officers, as the justices have sent a strong signal that lower courts must scrutinize admissions programs to ensure they are using the most narrowly tailored means to achieve student body diversity. Once a university shows that diversity is in line with its educational mission, the university then must show that the means it uses to attain that diversity are narrowly tailored to achieve that goal. The Supreme Court indicated that the lower courts must be satisfied that there is no workable, race-neutral alternative that would produce the student-body diversity.
In Fisher v. Texas, the University of Texas (UT) had achieved some success in improving diversity through a race-neutral law that admitted the students ranked in the top 10 percent of their classes in Texas high schools. For the remaining spots, UT utilized a holistic approach to admissions outlined in Grutter v. Bollinger, 539 U.S. 306 (2003), which considered race as but one factor in the admission decision. Many universities will be watching closely the lower court’s decision to see whether UT will be precluded from considering race in admissions because UT achieved diversity through a race-neutral program—the state’s Top 10% Law.