The Impact Of Fisher v. Texas On Race-Conscious Assignment Decisions In K-12 Schools

by Franczek Radelet P.C.

The big news this week in education is the U.S. Supreme Court’s 7-1 decision in Fisher v. University of Texas. In Fisher, the Court held that the lower court should not have taken at face value the University’s claim that it needed to use race in admissions decisions. The Court remanded the decision to the lower court to decide whether the University can establish that its consideration of race is narrowly tailored. Specifically, the University must show that it adequately considered race-neutral alternatives before deciding to consider race in admissions. The decision was a higher education decision, but there are important takeaways for primary and secondary schools, as well.

The Facts

As the National School Boards Association reported, the Fisher case arose when a white applicant to UT, Abigail Fisher, was denied admission under a “holistic review” application process that considers race as a factor in favor of admission. UT also has a “Top Ten Percent” program under which the University automatically admits all students in the top ten percent of their high school class.

Under longstanding Supreme Court precedent, schools can use race as a factor in admissions only if the decision passes a “strict scrutiny” test. Under this test, schools must show that the goal they are trying to achieve—diversity—is a “compelling interest,” and that the use of race is specifically and narrowly framed to achieve that goal (“narrow tailoring”).

In a set of higher education cases, Gratz v. Bollinger and Grutter v. Bollinger, decided in 2003, the Supreme Court had held that diversity could be a compelling interest. In Grutter, moreover, the Court determined that the University of Michigan’s use of race was narrowly tailored because it used race as only one factor among many in a holistic review of applicants, and did not assign any numerical values to race or use race as a determinative factor.

Fisher asked the Supreme Court to find that UT’s reliance on race was not narrowly tailored, in part because the Top Ten Percent program allowed automatic admissions to UT for diverse students at the top of their high school classes. On review in the trial court and before the Fifth Circuit Court of Appeals, the courts found that UT’s use of race passed strict scrutiny. In so doing, the courts gave substantial deference to the University’s good faith decision that diversity was a compelling interest and that the specific plan for using race was narrowly tailored to that goal.

Supreme Court Review

The U.S. Supreme Court disagreed. As Education Week explained, the Court agreed that a school’s decision that having a diverse student body is important to education is due deference by courts. But courts should not simply take at face value a school’s assertion that using race is necessary to fulfill that compelling interest. The Court made clear that schools must establish through evidence that race-neutral alternatives could not allow the school to achieve its compelling diversity goals.

Takeaways For K-12 School Leaders

So what does this decision mean for school leaders in primary and secondary schools? Although the case dealt with higher education admissions, there are important lessons that we can assume would be applied to the K-12 context. Here are a few:

Diversity Can Still Be Compelling. Many commentators predicted that the Supreme Court would decide that diversity could no longer be a compelling governmental interest in education, weakening or even overruling Gratz and Grutter. Had it done so, the decision likely would have sounded the death knell for the use of diversity at all levels of education, including in the K-12 context. Indeed, the Court has suggested that the goal of diversity in higher education is more compelling than in K-12, meaning that a sharp change in position in the higher education context would be even more devastating for the use of race in K-12 schools. The Supreme Court’s decision was much narrower than those commentators predicted, however, and in fact language in the opinion makes clear that a majority of the Court continues to embrace the goal of increased diversity in higher education at least to some extent. So for K-12 school districts that wish to increase diversity in student assignment, it signals the Court’s continued acknowledgement of the value of diversity in schools.

Is It Compelling? Schools Decide. What’s more, when determining whether diversity was a compelling interest, the Court approved the practice of giving deference to a higher education entity’s decision about the importance of race in the educational context. Again, although Fisher is a higher education case, a 2007 K-12 case, Parents Involved in Community Schools v. Seattle School District No. 1, also suggested that schools should have significant leeway to determine that diversity is a compelling interest in the schoolhouse and classroom. The Fisher decision leaves the door open for granting such deference to all levels of schools, including K-12 schools, and leaves the standard established in the Parents Involved case intact.

Beyond Balancing. The Court in Fisher repeated what is now well-understood law that schools should not use strict quotas or racial balancing to reach even laudable diversity goals. Rather, race can be considered for purposes of obtaining greater diversity only as part of a “holistic approach.” This was a key point in Parents Involved, in which the Court refused to allow schools to set targets for diverse populations in schools. K-12 schools should continue to heed the warning against use of quotas or numerical targets in student assignment.

Where’s the Proof? Perhaps the most important takeaway from the Fisher decision is the reiteration by the Court of the importance of showing that race is used only as narrowly as necessary to meet diversity goals, and specifically that there are no equally effective ways to achieve the diversity goals other than considering race. The Court held that the University of Texas should establish on remand to the lower court that race-neutral alternatives would not allow it to achieve the level of diversity it sought. This is not a new concept for K-12 schools, because the Court in Parents Involved also held that a school must show “serious, good faith consideration of workable race-neutral alternatives” in order to pass the narrow tailoring prong of the strict scrutiny test. But Fisher reiterates the importance of that standard to the Court and underscores that it is a rigorous standard. And Fisher makes clear that schools need only consider race-neutral alternatives; they need not necessarily try them before moving on to race-conscious means.  If, for example, certain race neutral methods have been tried in other similarly-situated districts and failed, those methods may not need to be implemented before turning to race-conscious measures.

In sum, Fisher clarifies that K-12 school leaders should continue to assess whether they are achieving the levels of diversity that meet their academic goals. If those levels are not being met, schools that wish to increase diversity in student assignment should, at the very least, articulate why those diversity goals are important for their student populations. They should then consider, though do not necessarily have to try, race-neutral alternatives before implementing any race-conscious means. Of course, because Fisher and many other related decisions are in the higher education context, there are no guarantees that taking these actions will prevent a legal challenge. And the intricacies of student assignment in the K-12 context make it more difficult to use a “holistic approach” for student assignment like those used for admissions in higher education—a reality insinuated in Parents Involved, a case that rejected the consideration of race by two public school districts. But following the guidelines from Fisher—and documenting compliance well—will put K-12 schools in the best possible position to face such a legal challenge in light of current Supreme Court precedent.

For more information on the Fisher case, see our recent FR Alert by Scott L. Warner and Patricia J. Whitten.

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.

© Franczek Radelet P.C. | Attorney Advertising

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