Supreme Court Rules that Lower Courts Failed to Apply Rigorous Enough Scrutiny to Racial Classification in Higher Education Admissions

by Holland & Knight LLP

In a 7-1 opinion, the United States Supreme Court concluded in Fisher v. Univ. of Texas, No. 11-345 (June 24, 2013) that lower courts had failed to apply a rigorous enough scrutiny to the University of Texas' use of racial classification in its admissions policy. The court ruled that, although a university is entitled to deference on its judgment that diversity is essential to its educational mission, no deference is owed on the question whether racial classifications are narrowly tailored to attain diversity.

Nearly as important as how the court ruled was how it did not rule. The court did not rule the university's admissions policy unconstitutional; rather, it vacated the judgment of the court of appeals and remanded for further proceedings, so that the policy may be considered and judged under the correct analysis. In addition, because the petitioner did not seek to overturn prior decisions holding that a compelling interest in the educational benefits of diversity can justify racial preferences in university admissions, those holdings remain valid law.

Equal Protection Challenge

Under the University of Texas' tiered admissions policy, over 80 percent of the entering class is admitted under Texas' Top Ten Percent Law with the balance admitted based on academic and personal achievement indices. The academic index can be high or low enough to be decisive. In all other instances, the university's personal achievement index, which incorporates an applicant's race as one factor, is decisive. The petitioner, a Caucasian female Texas resident, was denied undergraduate admission and sued.

She argued that the court of appeals erroneously applied the strict scrutiny standard and that the university's consideration of race violated the Equal Protection Clause because, in the petitioner's view, Texas' Top Ten Percent Law is race-neutral and effective to achieve diversity without the use of racial classifications. In the final year before the university implemented its race-sensitive admission policy, the entering class was 4.5 percent African-American and 16.9 percent Hispanic. The university responded that its admissions policy is a model of the type previously approved by the court and that Texas' Top Ten Percent Law is insufficient to enable the university to obtain a "critical mass" of minorities, especially at the classroom level.

Oral argument before the court was spirited. Justices Ginsburg and Sotomayor raised questions about the petitioner's standing, but the court did not explicitly address this issue in its opinion. More important to the outcome of the case, Chief Justice Roberts and Justices Scalia and Alito expressed their concern with how they could know when the university reached a critical mass or what Justice Scalia disparaged as a critical "cloud" without a working target.

Diversity May Not Hinge on Statewide Demographics

The court's opinion reiterates that the university may not define diversity as a specified percentage of a particular group merely because of race as that would amount to racial balancing. The court also emphasized that, although narrow tailoring does not require exhaustion of every conceivable race-neutral alternative, it does require a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. That inquiry must involve an examination of how the policy works in practice. The court ruled that the ultimate burden of demonstrating that workable race-neutral alternatives do not suffice is on the university.

Dissent Would Have Upheld the Texas Admissions Plan

The lone dissent was by Justice Ginsburg who argued that the university's admission plan closely adhered to the court's model in Grutter v. Bollinger, 639 U.S. 306 (2003). She also insisted that Texas' Top Ten Percent Law is not, in fact, race neutral because it allegedly increases diversity by admitting students from racially segregated neighborhoods and schools. Justice Kagan did not take part in the decision of the court. Justice Kennedy, normally considered a critical swing vote, delivered the opinion of the court. Justices Scalia and Thomas filed concurring opinions.

Effect on Colleges and Universities: Proving That Policies Are Narrowly Tailored

The primary practical effect of Fisher is to require colleges and universities to reexamine whether the race-conscious means they have chosen to achieve the benefits of student body diversity are narrowly tailored. The court offered only general guidance. Narrowly tailored admissions policies must evaluate each applicant "as an individual" and be "necessary" to achieve the educational benefits of diversity because race-neutral alternatives will not suffice. As evinced in oral argument, the challenge for institutions will be to articulate a threshold when the courts can recognize that the institution's objective has been met, although not as a percentage of a particular group merely due to race or ethnic origin, but consonant with academic objectives. 

Holland & Knight wrote an amicus brief on behalf of 66 members of Congress who supported the university's position in this case.

To ensure compliance with Treasury Regulations (31 CFR Part 10, §10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.

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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