United States: 'Fisher' Revisits "Strict Scrutiny" As Applied To Affirmative Action In College Admissions Programs

Last Updated: September 9 2013
Article by Vernon Francis, Alan D. Berkowitz and J. Ian Downes

In an Opinion authored by Justice Anthony Kennedy for a 7-1 majority, the United States Supreme Court in Fisher v. University of Texas at Austin, et al.,1 allowed public colleges and universities to retain their affirmative action programs, at least for the time being. But the Court also issued a stern reminder that to survive a legal challenge these programs must meet the Fourteenth Amendment "strict scrutiny" standard of review, which is applied to government actions or decisions that take race into account. After revisiting the meaning of that standard as applied to university admissions programs where race is used as a factor, the Court reversed and vacated the Fifth Circuit Court of Appeals' decision to uphold the University of Texas' admissions policy, which the University had adopted after the Supreme Court's decision in Grutter v. Bollinger.2 With only Justice Ruth Bader Ginsburg dissenting, the Supreme Court held that the lower courts had failed to apply "strict scrutiny" correctly. However, rather than strike down the University's program, the Supreme Court remanded the case to the lower courts "so that [the University's] admissions process can be considered and judged under a correct analysis." This article reviews the Court's opinion.


In 2008, Abigail Fisher applied for admission to the University of Texas at Austin, the state's flagship university and, as the Supreme Court observed, "one of the leading institutions of higher education in the Nation."3 At the time Fisher applied for admission, the University's admissions program expressly considered the race of applicants as part of its selection criteria.4 In 1996, the Fifth Circuit in Hopwood v. Texas5 had invalidated an earlier plan for the University that also had expressly taken race into account in making admissions decisions. Responding to Hopwood, the University stopped taking race into consideration and instead utilized a standard that examined a variety of other factors the University deemed relevant to the admissions process. The University also expanded its outreach programs.6

The Texas state legislature also responded to Hopwood by enacting a measure known as the "Top Ten Percent Law." This measure grants automatic admission to any state college in Texas, including the University of Texas at Austin, to all students who graduate in the top 10% of their classes at high schools that meet certain standards. The Supreme Court's Opinion in Fisher made a point of noting that under the post-Hopwood racially-neutral admissions rules as augmented by the Top Ten Percent Law, the percentages of African-American and Hispanic students enrolled at the University were higher than they were under the pre-Hopwood program that took race into account.7

The University revised its admissions program again in 2004 after the Supreme Court's decision in Grutter, where the Court upheld a University of Michigan Law School admission process that used race as one of several factors in making its admissions decisions. Following a review, the University essentially made a student's race one of a number of factors used to compute a "Personal Achievement Index," which was combined with an academic score to determine each applicant's placement on a grid. Students falling above a certain line on the grid were admitted under the Texas plan; students falling below the line were not. Although race was not assigned "an explicit numerical value" in these computations, it was "undisputed" that race "was a meaningful factor."8

Petitioner Fisher applied for admission to the University's 2008 class and was rejected. She then sued the University and various officials, claiming that the University's use of race in its admissions process violated the Equal Protection Clause. The parties cross-moved for summary judgment and the district court granted the University's motion. The Fifth Circuit affirmed.9 As the Supreme Court read it, the Fifth Circuit's opinion10 obligated courts applying Grutter to give "substantial deference" to the University both in its review of the school's "compelling interest in diversity's benefits" and in deciding whether the University's specific plan for achieving diversity in its student body was sufficiently "narrowly tailored" to meet the constitutional standard. After the Fifth Circuit denied Fisher's petition for rehearing en banc over the dissent of several judges, Fisher petitioned for a writ of certiorari, which was granted.11

The Majority's Analysis

The Supreme Court's analysis in Fisher focused primarily on whether the Fifth Circuit had applied "strict scrutiny" properly. Fisher's majority acknowledged that in Grutter the Court had observed that strict scrutiny should not be treated as "strict in theory but fatal in fact."12 But the Fisher majority also warned that the scrutiny to be applied had to be sufficiently "strict" – that is, it could not be "strict in theory but feeble in fact."13 In the end, the Court vacated the Fifth Circuit's opinion and remanded the case for further proceedings because it found that the circuit court's application of the "narrowly tailored" prong of the strict scrutiny standard had not been stringent enough.

The Court began its analysis by making clear that it was not overruling but applying what it referred to as the "three decisions that directly address the question of considering race and or minority status as a positive or favorable factor in a university's admissions process, with the goal of achieving the educational benefits of a more diverse student body."14 The cases were Regents of Univ. of Cal. v. Bakke,15 and the two University of Michigan cases decided in 2003, Grutter v. Bollinger16 and Gratz v. Bollinger.17 Reading these cases with other affirmative action decisions, the Court stated that, "[j]udicial review must begin from the position that 'any official action that treats a person differently on account of his race or ethnic origin is inherently suspect,' " and is thus subject to strict scrutiny under the Fourteenth Amendment. Strict scrutiny, the Court stated, is a "searching examination" that puts the burden on the government and not the individual challenging the racial classification, to prove that its reasons for enacting the classifications are "clearly identified and unquestionably legitimate."18

Reviewing its opinion in Grutter, the Court reiterated that racial classifications are constitutional only if they are narrowly tailored to further compelling government interests.19 In Grutter, the Court held that the attainment of a diverse student body is a "constitutionally permissible" goal for an institution of higher education, and that a university's "educational judgment" that diversity is essential to its mission "is one to which we defer."20 The Fisher court acknowledged this ruling, but stressed in addition that institutions of higher learning were entitled only to "some, but not complete judicial deference" to their decisions to embrace diversity as a goal. Rather, the Court admonished that: 1) a reviewing court "should ensure that there is a reasoned, principled explanation for the academic decision"; and 2) universities are not permitted to engage in unconstitutional "racial balancing" under the guise of implementing a diversity program. While noting that there was disagreement among the Justices about whether this should still be the law, the Fisher court declined the opportunity to "revisit" this question, noting that the parties had not asked the Court to consider it.21

In contrast, the Fisher court made clear that when applying strict scrutiny, reviewing courts should give no deference to colleges and universities when determining whether a diversity admissions program is sufficiently "narrowly tailored." While acknowledging that a court reviewing a school's policy certainly would be allowed to take a university's experience and expertise with admissions programs into account, Fisher's majority reiterated that, "[i]t 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."22

The Fisher opinion goes on to provide additional guidance on what the burden of establishing that a diversity admissions plan is "narrowly tailored" necessarily entails:

Narrow tailoring also requires that the reviewing court verify that it is "necessary" for a university to use race to achieve the educational benefits of diversity. Bakke, supra, at 305. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although "[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative," strict scrutiny does require a court to examine with care, and not defer to, a university's "serious, good faith consideration of workable race-neutral alternatives." See Grutter, 539 U.S. at 339-340 (emphasis added). Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If "a nonracial approach...could promote the substantial interest about as well and at tolerable administrative expense," Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 280, n. 6 (1986) (quoting Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law School Admissions, 75 Colum. L. Rev. 559, 578-579 (1975)), then the university may not consider race. A plaintiff, of course, bears the burden of placing the validity of a university's adoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.23

This articulation of the "narrowly tailored" inquiry differs in some respects from the Court's discussions of the standard's application in Grutter and Bakke. Neither the majority opinion in Grutter nor Justice Powell's Opinion for the Court in Bakke states that strict scrutiny may be satisfied with regard to the review of a college or university's admissions program only if "no workable race-neutral alternatives would produce the educational benefits of diversity."24 Although language from the Grutter majority is quoted, the "narrowly tailored' inquiry outlined in the above passage from Fisher is actually more in sync with the versions of the test outlined in Justice Kennedy's dissent in Grutter, and Chief Justice Rehnquist's dissent in that case, which Justice Kennedy joined.25

The Court concluded that the Fifth Circuit made its mistake in "deferring to the University's good faith in its use of racial classifications," and that as a result it did not properly apply the "narrowly tailored" standard. This is because, as the Fisher court stated, "strict scrutiny does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice."26

Rather than invalidate the University's plan, however, the Court concluded that "fairness to the litigants and the courts that heard the case" required that the case be remanded "so that the [University's] admissions process can be considered and judged under a correct analysis." In so deciding, the Justices left it to the Court of Appeals to determine "in the first instance" whether the record amassed before the trial court -- which had decided in the University's favor after reviewing cross-motions for summary judgment, rather than a full trial record – provided sufficient support for the University's claim that its admissions program was "narrowly tailored."27

Concurrences and Dissent

Although they joined Fisher's majority opinion, Justices Antonin Scalia and Clarence Thomas also authored concurring opinions that reiterated their stated opposition to any use of race by government as a factor in decision-making. Justice Scalia held to his view that the Constitution proscribes any "government discrimination on the basis of race," and explained that he joined the majority's opinion in Fisher only because the petitioner had not asked the Court to overrule Grutter.28

Justice Thomas wrote a longer and more involved concurrence to explain not only his legal reasons for seeking to overrule Grutter, but also to outline his opposition to the use of race in university admissions from a socio-historical and educational standpoint. Justice Thomas characterized Grutter as "a radical departure" from the Court's previous strict scrutiny jurisprudence, and argued that the Court's deference to the University's judgment on the need for diversity was "[c]ontrary to the very meaning of strict scrutiny."29 His central points were: 1) there should be no difference between the Court's application of strict scrutiny to the use of "benign" race-based preferences in University admissions and its applications of the standard in cases involving challenges to state-imposed rules that had been designed to perpetuate segregation; and 2) the "affirmative" use of race is a form of "racial engineering" that is damaging to everyone, including the students who are supposed to benefit from such programs.30

The Court's only dissenter in Fisher was Justice Ginsburg, who would have upheld the University's program without remanding. She characterized the supposedly racially-neutral alternatives pressed by the majority as race-conscious policy-making in disguise and expressed her preference for the "candid" use of race in college admissions decisions over "obfuscation."31 She would have held that the University's actions – namely, its use of race "only as a factor of a factor of a factor" in its admissions calculus; the yearlong review through which the University reached the "reasonable, good faith" conclusion that "supposedly race-neutral initiatives" were insufficient; and the fact that the University's program was subject to periodic review to ensure that its use of race as a factor would last only as long as it was needed to achieve the school's objectives -- met the standards announced in Bakke and Grutter.32


Consistent with its holding in Grutter, the Supreme Court's decision in Fisher allows public colleges to continue to use race as a factor in their admissions programs, as long as these programs can survive the application of the "strict scrutiny" required by the Equal Protection Clause. At least for the time being, colleges and universities may still consider achieving a level of diversity in their student populations a "compelling" state interest that can justify the "necessary" use of race as a factor. However, while not invalidating the University of Texas' admissions program, the majority in Fisher also made clear that the University's program and programs like it should be subject to "searching" review if and when they are challenged in the courts. Fisher would seem to suggest, moreover, that these institutions must be prepared to show not only that they in fact seriously considered racially-neutral alternatives before turning to the use of racial preferences, but also that none of these supposedly "neutral" alternatives were capable of producing a diverse student body.

Other courts (starting with the Fifth Circuit) will have to determine what the Fisher court's particular articulation of the strict scrutiny standard actually means in practice. In the meantime, the leaders of public colleges and universities, as well as the administrators who are responsible for their admissions programs, should review the Fisher opinion – along with the Court's opinions in Bakke and Grutter – carefully.


1 Fisher v. University of Texas at Austin, et. al., 133 S.Ct. 2411 (2013). Justice Kagan did not participate in the case.

2 539 U.S. 306 (2003).

3 See Fisher, 133 S.Ct. at 2415.

4 See id. at 2415-17.

5 Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).

6 See Fisher, 133 S.Ct. at 2415-16.

7 See id. at 2416.

8 See id. at .2416-17.

9 See id. at 2417.

10 Fisher, et al. v. University of Texas of Austin, et al., 631 F.3d 213 (5th Cir. 2011). The Fifth Circuit's discussion of the standard of review can be found at pages 231-34.

11 See Fisher, 133 S.Ct. at 2417.

12 See id. at 2417 (citing  Grutter, 539 U.S. at 326).

13 See id.

14 See id. at 2421 ("We take those cases as given for purposes of deciding this case").

15 438 U.S. 265 (1978).

16 See supra note 2.

17 539 U.S. 244 (2003).

18 See Fisher, 133 S.Ct. at 2418-19.

19 Id. at 2419.

20 See Grutter, 539 U.S. at 328.

21 See Fisher, 133 S.Ct. at 2419.

22 See id. at 2419-20.

23 See id. at 2420.

24 Justice Powell's discussion of why the University of California at Davis Medical School's plan failed to meet the "narrowly tailored" standard can be found in his Bakke opinion at, 438 U.S. at 315-20. The Court's discussion of the standard's application in  Grutter is found at 539 U.S. at 333-43. What Grutter says is that "narrow tailoring" requires "serious, good faith consideration of workable race-neutral alternatives,"  id. at 339-40, and not that a Court must "ultimately be satisfied that no workable race-neutral alternatives would produce the education benefits of diversity."  Fisher, 133 S.Ct. at 2420. Indeed, the majority's Opinion in Fisher cites not to  Grutter or  Bakke to support this proposition, but to a footnote from the Court's opinion in Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 280 n.6 (1986).

25 See Grutter, 539 U.S. at 379 (dissent of Rehnquist, C.J.)("Our cases establish that, in order to withstand this demanding inquiry, respondents must demonstrate that their methods of using race 'fit' a compelling state interest 'with greater precision than any alternative means'");  see also id. at 388 (dissent of Kennedy, J.) ("deference is not to be given with respect to the methods by which [student body diversity] is pursued").

26 Fisher, 133 S.Ct. at 2420-21.

27 Id. at 2421.

28 Id. at2422.

29 Id. at 2424.

30 Id. at 2424-32.

31 Id. at 2432-33.

32 Id. at 2433-34.

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