June 24, 2013

Supreme Court Decides Fisher v. University of Texas at Austin

On June 24, 2013, the U.S. Supreme Court held that the Fifth Circuit erred in failing to review a university's approach to considering race in the undergraduate admissions process under the proper strict scrutiny standard, under which courts should not defer to a university in determining whether the process is narrowly tailored to meet the stated goal of diversity.

Petitioner applied for admission to the University of Texas at Austin's 2008 entering class. Beginning in June 2004, the University determined that it would resume race-conscious considerations in the admissions process because it lacked a "critical mass" of minority students. The University used two indices in the admissions process—an Academic Index and a Personal Achievement Index. The Personal Achievement Index included factors such as extra-curricular activities, work experience, and life circumstances such as "growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student's family." Race was also taken into account in the Personal Achievement Index, but was not assigned a numeric value. A student's admission was determined by charting the student's Academic Index and Personal Achievement Index and accepting all students that fell above a certain line.

After Petitioner was rejected from the University, she filed a lawsuit against the institution and various institution officials alleging that consideration of race in the admissions process violated the Equal Protection Clause.

The district court granted the University's motion for summary judgment, and the Fifth Circuit affirmed. The Fifth Circuit applied deference in analyzing both the definition of the compelling interest and whether the implementation was narrowly tailored. As part of the deference accorded by the court, it presumed that the University acted in good faith in implementing the reintroduction of race as a factor in the admissions process.

The Supreme Court held that the Fifth Circuit had not applied the proper standard of strict scrutiny required by its previous jurisprudence, including Grutter and Bakke. The Fifth Circuit was correct in concluding that courts should defer to a university's "educational judgment that such diversity is essential to its education mission" according to Grutter. The Court emphasized that "[t]here is disagreement as to whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity," but the parties did not ask the Court to revisit that issue.

Once the goal of student diversity is established as consistent with strict scrutiny, courts must also determine that "the admissions process meets strict scrutiny in is implementation"—i.e., that the "means chosen by the University to attain diversity are narrowly tailored to that goal." In this stage of the analysis, Courts must not defer to the University. "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."

The case was remanded to the Fifth Circuit for reconsideration of the issues under the proper standard.

Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor joined. Justices Scalia and Thomas filed concurring opinions. Justice Ginsburg filed a dissenting opinion. Justice Kagan took no part in the consideration or decision of the case.

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