June 23, 2016

Supreme Court Decides Fisher v. University of Texas at Austin

On June 20, 2016, the U.S. Supreme Court decided Fisher v. University of Texas at Austin, No. 14-981, holding that the Equal Protection Clause of the Fourteenth Amendment permits the University of Texas’ use of race-conscious criteria for a portion of each incoming class, but the University must continue to reassess the constitutionality of its program in light of changing circumstances and of the data it collects.

Abigail Fisher, a Caucasian student, was rejected for admission to the University of Texas. She sued, claiming that the consideration of race in the admissions program deprived her of equal protection of the laws.

Under the current criteria, 75 percent of the seats in each class at the University are filled based solely on applicants’ rank in their high school graduating class. The remaining seats are filled based on a combination of academic credentials; an evaluation of two required essays; “any supplemental information the applicant submits” such as “letters of recommendation, resumes, an additional optional essay, writing samples, artwork, etc.”; and “the applicant’s leadership experience, extracurricular activities, awards/honors, community service, and other ‘special circumstances.’” “‘Special circumstances’ include the socioeconomic status of the applicant’s family, the socioeconomic status of the applicant’s school, the applicant’s family responsibilities, whether the applicant lives in a single-parent home, the applicant’s SAT score in relation to the average SAT score at the applicant’s school, the language spoken at the applicant’s home, and, finally, the applicant’s race.” All these factors are aggregated into a numerical score, and the available seats are assigned to the applicants with the highest scores. Under these criteria, the proportion of African-American students to the remaining 25 percent of seats rose from 3.5 percent to 6.8 percent; the proportion of Hispanic students rose from 11 percent to 16.9 percent.

The Court of Appeals for the Fifth Circuit upheld the program, both initially and after the Supreme Court vacated and remanded its initial decision in 2013.

On its second round of review, the Supreme Court affirmed and upheld the University’s program. The Court reaffirmed its previous decisions that there is a compelling government interest in “the educational benefits that flow from student body diversity.” And it stated that “[c]onsiderable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” While “a university bears a heavy burden in showing that it had not obtained the educational benefits of diversity before it turned to a race-conscious plan,” Texas satisfied that burden here.

In particular, after its previous race-conscious admissions program was struck down in 1996, the University “intensified outreach efforts” to minority students. It “created three new scholarship programs, opened new regional admissions centers, increased its recruitment budget by half-a-million dollars, and organized over 1,000 recruitment events.” After seven years, the University conducted “a year-long study seeking to ascertain whether its admissions policy was allowing it to provide the educational benefits of a diverse student body to all of the University’s undergraduate students.” The University found “consistent stagnation in terms of the percentage of minority students enrolling at the University,” that minority students “experienced feelings of loneliness and isolation,” and that the racial composition of its courses was skewed such that more than three-quarters of classes at the University had no or only one African-American student. The Court held this sufficient to permit reinstitution of race-conscious admissions criteria.

Considering the substance of Texas’ plan, the Court noted that, “race is but a ‘factor of a factor of a factor’ in the holistic-review calculus,” and its use “is contextual and does not operate as a mechanical plus factor for underrepresented minorities.” While the plan increased minority enrollment incrementally rather than dramatically, “it is not a failure of narrow tailoring for the impact of racial consideration to be minor. The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring.” Finally, the Court held that the University was not required to assign all seats based solely on academic performance as a race-neutral alternative. Because the “basic purpose” of such a plan would be “to boost minority enrollment,” using it would not “make its admissions policy more neutral.” Nor is the University required to “sacrifice all other aspects of diversity in pursuit of enrolling a higher number of minority students.”

The Court stressed that its “affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement.” Instead it stated that the University has a “continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances.” “[T]he University must continue to use” the data it collects to “scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.”

Justice Kennedy delivered the opinion of the Court, in which Justices Ginsburg, Breyer, and Sotomayor joined. Justice Thomas filed a dissenting opinion. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined. Justice Kagan was recused. The Court’s rules provide that six Justices constitute a quorum, so the 4-3 decision is precedential.

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