United States: U.S. Supreme Court Upholds Affirmative Action Program At University Of Texas

On June 23, 2016, in its second time hearing Fisher v. University of Texas, the U.S. Supreme Court upheld the affirmative action admissions program at the University of Texas at Austin. The Court held that the program is lawful under the Equal Protection Clause because it is narrowly tailored to achieving concrete, compelling goals tied to the educational benefits flowing from student body diversity. The Court signaled that its holding was necessarily limited to the unique circumstances at UT, where only 25% of the first-year class is admitted under a framework considering race as one among many factors. Despite this limitation, under Fisher, higher education institutions may continue to use holistic, race-conscious admissions practices, so long as such practices are grounded in a reasoned determination that the educational value achieved from considering race as a factor cannot be achieved through other means.

The Legal Background: Race as a "Plus" Factor in Undergraduate Admissions

Consideration of race as a "plus" factor in admissions was endorsed by the U.S. Supreme Court in Bakke v. Regents of the University of California in 1978. Under Bakke, a university may consider an applicant's race along with test scores, grades, extracurricular activities, hobbies, and special achievements. In 2003, the Supreme Court affirmed Bakke in Grutter v. Bollinger, which held that universities may take race into consideration as one factor among many in selecting incoming students.

In a companion case to Grutter, Gratz v. Bollinger, the U.S. Supreme Court made clear that a point system, which assigns values for race, geography, legacy or alumni relationships, and other factors, was not sufficiently individualized and narrowly tailored to survive strict scrutiny. Race could not increase the chances of admission or be dispositive in any sense, but it could be considered as part of a holistic, subjective analysis of each applicant.

Under Bakke and Grutter, student or educational diversity is a compelling interest that may be served by holistic, race-conscious admissions policies. As Justice Powell wrote in Bakke, "attainment of a diverse student body. . . is a constitutionally permissible goal for an institution of higher education," because it "serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes." But as these decisions made clear, any consideration of race to achieve this interest must be narrow, necessary, and not overly prescriptive, within the context of a highly individualized review of each applicant.

The University of Texas at Austin's Admissions Policy

A Texas law requires that the University of Texas at Austin (UT) admit all high school seniors who rank in the top ten percent of their high school classes (known as the Top Ten Percent Plan). Up to 75% of the first-year class may be filled by this Plan. For the remaining 25% or so of the class, UT uses a combination of an "academic index" (based on SAT score and academic performance) and a "personal achievement index" (PAI). PAI is based on a holistic review of an application, including an applicant's essays, supplemental information such as letters of recommendation and artwork, and an assessment of the applicant's potential contributions to the student body. Potential contributions are evaluated based on leadership experience, extracurricular activities, and other "special circumstances," including socioeconomic status, family responsibilities, and race. This inclusion of race as a subfactor in one index used to make admissions decisions is driven by UT's finding of meaningful differences in the racial and ethnic composition of its undergraduate population compared to the state's population, and in its determination that a diversity of perspectives on campus serves important educational goals.

Fisher I: The Supreme Court Remands for Strict Scrutiny of University of Texas at Austin's Admissions Policy

In 2008, Abigail Fisher, a young Caucasian woman who graduated from a Texas high school but was not in the top ten percent of her class, was denied admission to UT under the holistic, full-file review given to applications outside the Top Ten Percent Plan. She filed suit against UT, arguing that its admissions policy considering race as a factor violated the Equal Protection Clause of the Fourteenth Amendment.

UT Persuades the District Court and the Fifth Circuit

UT defended its practice by arguing that its use of race was a narrowly tailored means of pursuing greater diversity, consistent with the precedents set by Grutter and Gratz in 2003. UT emphasized that Ms. Fisher could not prove either that she would have been admitted under a race-neutral policy, or that she suffered any cognizable injury in being denied admission, having subsequently graduated from Louisiana State University and obtained a job in finance. The U.S. District Court for the Western District of Texas and the U.S. Court of Appeals for the Fifth Circuit agreed. The District Court granted summary judgment for UT, and the Fifth Circuit affirmed.

The Supreme Court Affirms Bakke and Grutter But Remands for Strict Scrutiny

In a 7-1 decision, the U.S. Supreme Court reversed and remanded the case to the Fifth Circuit because the lower court did not apply the correct level of scrutiny.

The Supreme Court held that although the Equal Protection Clause permits consideration of race in undergraduate admissions decisions, consistent with Bakke as interpreted by Grutter, any consideration of race is subject to strict judicial scrutiny to determine whether the policy is "precisely tailored to serve a compelling governmental interest." Under strict scrutiny, the use of race must further a compelling interest and must be necessary to do so. The Supreme Court instructed the lower court that "strict scrutiny must not be strict in theory, but fatal in fact," but it must also "not be strict in theory but feeble in fact." In so doing, the Supreme Court reaffirmed the Grutter rule, and required the Fifth Circuit assess whether the program truly passed strict scrutiny.

The Fifth Circuit Affirms UT's Policy Again

In 2014, on remand, the Fifth Circuit concluded that UT's policy passed strict scrutiny and again affirmed the lower court's grant of summary judgment for UT. Applying the more "exacting scrutiny" ordered by the Supreme Court, the Fifth Circuit concluded that the University engaged in holistic review of applicants outside of the Top Ten Percent Plan, that the impact of the review on minority admissions was narrow, and that the holistic review served the compelling interest of ensuring "the richness of the educational experience" at UT.

The Court reasoned that if the University could rely only on the diversity achieved from the Top Ten Percent Plan solely because of the de facto segregation of schools in Texas, it would not be able to achieve "the rich diversity that contributes to its academic mission" that was endorsed by Bakke and Grutter. UT Austin's holistic review program was "nearly indistinguishable from the University of Michigan Law School's program in Grutter" and "was a necessary and enabling component of the Top Ten Percent Plan by allowing UT Austin to reach a pool of minority and non-minority students with records of personal achievement, higher average test scores, or other unique skills."

UT's admissions policy satisfied the Bakke and Grutter framework because it focused on "critical mass," defined by "a broader view of diversity," rather than achieving a certain quota. UT's holistic review served to "patch the holes" that the more mechanical Top Ten Percent Plan left in achieving campus diversity without setting a hard-and-fast percentage of minority students to reach.

Fisher II: UT's Policy Is Narrowly Tailored to a Compelling Academic Interest in Diversity

Ms. Fisher appealed, and the Supreme Court granted certiorari again, hearing oral argument in December 2015. On June 23, 2016, the Supreme Court issued a 4-3 decision affirming the Fifth Circuit's confirmation of the legality of UT's admissions policy.

Although there was no dispute that under UT's policy, race could make a difference in whether an application was accepted or rejected, the Court concluded that UT had met its burden of demonstrating that it had concrete, measurable goals for educational diversity and that it was not able to enroll students who could offer underrepresented perspectives without a race-conscious policy. Specifically, UT seeks to provide "an educational setting that fosters cross-racial understanding" and "enlightened discussion and learning," and prepares students "to function in an increasingly diverse workforce and society." UT tried numerous alternatives, including creating scholarship programs, increasing its recruitment budget, and using race-neutral holistic review processes that enhanced consideration of socioeconomic and other factors, and had the demographic data to show that these alternatives did not achieve its goals. Moreover, under the UT policy, "race is but a 'factor of a factor of a factor' in the holistic-review calculus." As a result, UT met its burden of showing that the admissions policy under which it denied the petitioner's application was narrowly tailored toward a compelling interest.

Notably, the Court rejected the petitioner's assertion that considering race was not necessary because it had only a minimal impact in advancing UT's goals for educational diversity. Instead, the Court noted, "the fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality."

What Fisher Means for Public Higher Education Institutions

Relevant to the Court's highly fact-driven assessment of UT's approach was the fact that 75% of first-year students were not admitted under the race-conscious admissions program, and instead under a program which is mandated by state statute and over which UT has no control. As a result, Fisher II's impact may not provide meaningful direction for institutions that consider race as a factor in all of their admissions decisions, as the Supreme Court directly acknowledged.

Nonetheless, Fisher I and II offer some important guidance for institutions assessing their admissions policies and practices:

  • An institution must be able to demonstrate clearly that the purpose or interest of considering racial characteristics is substantial, and that its use is necessary to the accomplishment of this purpose.
  • Courts will generally defer to an academic judgment that educational benefits flow from student body diversity and certain "intangible characteristics," so long as an institution can offer a reasoned, principled explanation for this conclusion and concrete, precise goals by which these benefits can be sufficiently measured. This enables courts to assess the policies adopted to reach them, as courts will give no deference to whether the use of race is narrowly tailored to achieve this educational goal.
  • An institution must be able to prove that it cannot obtain the educational benefits of diversity "about as well and at tolerable administrative expense" without employing a race-conscious policy. In Fisher, UT provided a host of demographic data to support the need for its plan.
  • Fixed quotas or use of percentages based on race or ethnic origin remain impermissible.
  • Institutions should regularly evaluate student body data and the student experience to assess whether changing circumstances warrant revision of admissions practices. Specifically, institutions should continuously "scrutinize the fairness of its admissions program," "assess whether changing demographics have undermined the need for a race-conscious policy," and "identify the effects, both positive and negative, of the affirmative-action measures it deems necessary."

Disclosure: Mintz Levin represented the Lawyers Committee for Civil Rights and Economic Justice in filing an amicus brief on behalf of a group of empirical scholars in support of the University of Texas in Fisher II.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.