U.S. Supreme Court Finds Affirmative Action Admission Policies Unconstitutional Absent Passing Strict Scrutiny Standards

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In a 7-1 opinion, on June 24, 2013, the Supreme Court of the United States upheld the use of affirmative action policies in higher education, albeit only those that can withstand strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Fisher v. University of Texas at Austin, 570 U.S. ___ (2013) (slip op.), arose from the rejection of Abigail Fisher, a Caucasian woman, for admission to the University of Texas at Austin (the "University") in 2008. Fisher sued the University, contending that its use of race in the admissions process violated the Equal Protection Clause. The University's admissions policy applicable at the time of Fisher's application evaluated applicants based on an Academic Index and a Personal Achievement Index. The Personal Achievement score is generated based on the applicant's responses to two essays and the applicant's achievements vis-à-vis leadership experience, awards, community service and race, among other things. Once applicants are assigned academic and personal achievement scores, the University plots those scores on a grid. Individuals falling above a certain line are admitted; those falling below are rejected. Ms. Fisher did not meet the line for admission.

The United States District Court for the Western District of Texas granted summary judgment to the University, and the United States Court of Appeals for the Fifth Circuit affirmed. The Court of Appeals held that the University gave appropriate attention to the educational benefits of a diverse student body and Fisher did not sufficiently rebut the University's good-faith conclusion that it had not reached a critical mass of diverse students. Justice Kennedy, writing for the majority, admonished the Court of Appeals for deferring to the University, misapplying the burden and failing to perform the searching inquiry commanded by the Equal Protection Clause.

At the outset, the majority endorsed the Supreme Court's 2003 decision in Grutter v. Bollinger, 539 U.S. 306 (2003), which established affirmative action as constitutional to further states' compelling interest in fostering a diverse student body. The majority confirmed that a reviewing court may defer to a university's "educational judgment that such diversity is essential to its educational mission," provided "there is a reasoned, principled explanation for the academic decision." 570 U.S. __ , at *9. Once that compelling interest has been thoughtfully articulated, however, it is the province of the court to evaluate whether the means selected to implement that compelling interest are narrowly tailored. This includes inquiry into whether a university can achieve its goals of diversity without using racial classifications. Quoting Grutter, the Court emphasized, "it remains at all times the University's obligation to demonstrate, and the Judiciary's obligation to determine, that admissions processes 'ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.'" Id. at *10.

The Court found that the lower courts abdicated their responsibility and misapplied Grutter in holding that the University's use of race in admissions "fell within a 'constitutionally protected zone of discretion'" and improperly placing the burden on the plaintiff to rebut the presumption that the University acted in good faith. Id. at *11. "Grutter did not hold that good faith would forgive an impermissible consideration of race." Id. at *12. The Court remanded the matter to the Fifth Circuit to assess whether the University offered sufficient evidence that its admissions policy was narrowly tailored to obtain its compelling interest in a diverse student body.

Justice Thomas issued a concurring opinion in which he joined the majority in holding that the Court of Appeals did not apply the correct standard in evaluating the University's admissions policy, but also to address why Grutter should be overruled. Justice Thomas opined that "there is nothing 'pressing' or 'necessary' about obtaining whatever educational benefits may flow from racial diversity," and "[e]ducational benefits are a far cry from the truly compelling state interests that we previously required to justify the use of racial classifications."

Justice Ginsburg issued the sole dissenting opinion, finding that the University had established that its admission policy flexibly considered race based on its informed judgment from a yearlong review and good-faith conclusions.

Justice Kagan recused herself from the matter, given her earlier involvement with the case while serving as Solicitor General.

While Fisher may be viewed by some as maintaining the status quo with respect to the consideration of race in higher education admissions policies, it is apparent that universities and colleges should be prepared to articulate a compelling basis for such affirmative action policies and vigorously defend the means selected to achieve the goal of a diverse student body.