United States: Supreme Court Reaffirms University's Race-Conscious Admissions Policy

Nathan Adams IV is a Partner in Holland & Knight's Tallahassee office

HIGHLIGHTS:

  • The U.S. Supreme Court upheld the University of Texas at Austin's race-conscious undergraduate admissions policy.
  • The ruling in Fisher v. University of Texas at Austin reaffirms that the "educational benefits that flow from student body diversity" is a sufficiently clear and compelling interest to justify consideration of race in college admissions.
  • The Court also reaffirmed that periodic study and review is essential to determine the fairness of a race-conscious admissions program.

In a much-anticipated decision, the U.S. Supreme Court upheld the University of Texas at Austin's race-conscious undergraduate admissions policy. That policy applies to roughly 25 percent of the incoming class. The other 75 percent is admitted under the Top Ten Percent Plan of the State of Texas. The decision, Fisher v. University of Texas at Austin, No. 14-981 (U.S. June 23, 2016), is the second time the Court has reviewed the Texas admissions policy. In its initial review, the Court remanded the case after concluding that the Court of Appeals for the Fifth Circuit failed to evaluate the program according to strict scrutiny, the most stringent constitutional test. Upon remand, the Fifth Circuit once again upheld the policy, and this time the Supreme Court affirmed by a 4-3 vote.

The Fisher ruling reaffirms that the "educational benefits that flow from student body diversity" is a sufficiently clear and compelling interest to justify consideration of race in college admissions. The dissent agreed with the student challenging the policy that more clarity is required about that interest such as the level of minority enrollment that would constitute a "critical mass." But the majority was satisfied with what it called the University's "concrete and precise goals" such as the avoidance of stereotypes, "promoting 'cross-racial understanding,' preparing students for 'an increasingly diverse workforce and society,' and cultivating leaders with 'legitimacy in the eyes of the citizenry' " as well as striving to provide an academic environment that offers a "robust exchange of ideas" and "exposure to differing cultures."

To satisfy strict scrutiny, the state must further its compelling interest in the "least restrictive" or most "narrowly tailored" manner. The student argued that the University had already achieved "critical mass" using the Top Ten Percent Plan and, in any event, that a race-conscious policy was not necessary because it had a "minimal impact." Under the Top Ten Percent Plan, the top 7 percent or 8 percent of a high school class is admitted. The student referred to the plan as one of several race-neutral options for achieving the compelling interest, whereas the Court found that the plan is race-conscious due to racial segregation within high schools. In addition, the Court found that the University had exhausted other race-neutral alternatives (e.g., outreach and scholarship programs, regional admission centers and increased recruiting) without attaining its goals. The dissent argued that it was impossible to tell or apply narrow tailoring at all because of the vagueness of the University's goals.

The Court also found that the Top Ten Percent Plan had resulted in stagnating enrollment for African-American and Hispanic students from 1996 to 2002, "feelings of loneliness and isolation," as well as 52 percent of undergraduate classes with at least five students that had no African-American students and 27 percent with only one African-American student. On this basis, the Court determined that the University made a reasonable determination that it had not yet attained its compelling interest in student diversity. Instead of a ground for unconstitutionality, the Court reasoned that "[t]he fact that race consciousness played a role in only a small portion of admissions decisions" was a "hallmark of narrow tailoring."

Considerations for Educational Institutions

Although upholding the University's admissions policy, the Court also reaffirmed that periodic study and review is essential to determine the fairness of a race-conscious admissions program, to evaluate whether changing demographics have undermined the need for a race-conscious policy and to examine the effects of the program. The precise role of demographics in admissions policy remains unclear. In other cases, the Court has stricken policies designed to achieve parity with demographics. But in this case, the Court observed that, "[a]lthough demographics alone are by no means dispositive, they do have some value as a gauge of the University's ability to enroll students who can offer underrepresented perspectives."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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