Supreme Court Upholds Strict Scrutiny Standard In Affirmative Action

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On June 24, 2013, the Supreme Court in Fisher v. University of Texas reaffirmed that the strict scrutiny standard of review applies when evaluating a university’s affirmative action admissions program. On these grounds, by a 7-1 vote, the Supreme Court, vacated and remanded the Fifth Circuit’s decision affirming that the University of Texas at Austin (“UT” or “University”) affirmative action program was constitutional under Grutter v. Bollinger, 539 U.S. 306 (2003),[1] and ordered the Fifth Circuit to properly re-evaluate the case under the strict scrutiny standard.[2]

This action arose when white applicant Abigail Fisher was denied admission to UT in 2008. She sued UT alleging that UT’s admission process considered race in violation of the 14th Amendment’s Equal Protection Clause.

Specifically, the petitioner argued that UT’s admission policy unconstitutional because it required applicants to check off one out of five pre-defined racial categories on the applicant’s Personal Achievement Index (“PAI”).  Although the PAI did not label these race categories with a numerical value, the petitioner argued that UT-University used race in a meaningful way when calculating the PAI score.[3]

After the District Court ruled in favor of UT, Fisher appealed to the Fifth Circuit. Relying on Grutter, the Fifth Circuit held that the courts must “assume” that the University acted in “good faith”   and could not “‘second-guess the merits’ of the University’s decision.” Ultimately, the Fifth Circuit interpreted Grutter to require the courts “to give substantial deference to the University, both in the definition of the compelling interest in diversity’s benefits and in the deciding whether a specify plan was narrowly tailored to achieve its specific goal.”

After the Fifth Circuit ruled in favor of UT, Fisher petitioned and was granted certiorari. Upon review, the Supreme Court held that the Fifth Circuit erroneously interpreted and applied the standard of review under Grutter. Although the Fifth Circuit correctly held that deference is accorded to the universities in establishing a “compelling interest” for the school’s affirmative action admissions policy, the Supreme Court noted that the “means” a university employs to achieve diversity goals is to be evaluated by the courts.

Accordingly, the Supreme Court held that an admissions process that employs “any racial classification must meet strict scrutiny.” Thus, even if a university’s affirmative action admissions goal “serve[s] a compelling government interest,” the means by which the university achieves that goal must be “narrowly tailored.” This requires that the university evaluate each applicant as an individual and only use race in the event that the admission process cannot feasibly implement any other non-racial means to achieve this goal.

Case Update

Following the Supreme Court’s June decision to vacate and remand the case, Fisher’s brief to the Fifth Circuit is scheduled to be filed by October 4, 2013. The University’s brief is scheduled to be filed by October 25, 2013. Ms. Fisher’s reply-brief is scheduled to be filed by November 8, 2013.

Interested in finding out how the Fifth Circuit will decide Fisher’s case? Please return to this blog for future updates.

If you or your company would like more information regarding anti-discrimination or education law, call James G. Ryan at (516) 357-3750 or email him at jryan@cullenanddykman.com.

A special thanks to Melissa Cefalu, a law clerk at Cullen and Dykman LLP, for help with this post.

[1] In a 5-4 decision, the United States Supreme Court upheld an affirmative action admissions policy implemented by the University of Michigan Law School. Aside from the law school demonstrating a compelling interest in promoting diversity, the Court found the admissions policy constitutional because it considered several factors outside of race and therefore evaluated each applicant on an individual basis. Consequently, the policy did not rise to the level of an unconstitutional quota system

[2] See also Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978) supra.  In a 5-4 decision, the United States Supreme Court struck down Regent University of California’s admissions program because it implemented a 16% minority quota system. The Court found that the medical university’s quota system discriminated against white applicants, such as Bakke, because race was used as a predominant factor in evaluating applicants. The university’s failure to consider applicants on an individual basis rendered the program unconstitutional. The Supreme Court held that in addition to demonstrating a compelling interest to reverse past discrimination, the means imposed by the university to achieve that goal must be narrowly tailored. In other words, race may be incorporated into the admission process if race is considered a flexible factor and no other non-racial means exist to achieve the university’s diversity goals.

[3] The UT admission process would plot each applicant’s academic score on the x-axis and each applicant’s PAI score on the y-axis of a grid. The admissions program would then select an appropriate a cut off point for admissions. Any applicants with scores located above the cutoff point would be offered admission to the University, and any applicants with scores below the cutoff point would not be offered admission to the University.