In Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (“Fisher II”), the Supreme Court upheld the constitutionality of the University of Texas at Austin’s (“UT”) race-conscious admissions program. The 4-3 decision ended Abigail Fisher’s long-running equal protection challenge to UT’s policy. The decision surprised many observers after the Court’s earlier consideration of the case in Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013) (“Fisher I”), in which the Court had seemed to establish a more demanding, and perhaps insurmountable, standard of review.
Fisher II gives new hope to universities seeking to employ race-conscious admissions policies to promote diversity. The decision reaffirms the framework of Grutter v. Bollinger, 539 U.S. 306 (2003), without restating Grutter’s prediction that affirmative action would no longer be necessary in 25 years. Fisher II declares that universities are owed “considerable deference” in articulating diversity goals and, by accepting UT’s showing on race-neutral alternatives, suggests more leeway for universities to develop narrowly-tailored policies geared to their specific circumstances.
In 2003, the Supreme Court in Grutter applied “strict scrutiny” analysis to a race-conscious admissions policy, holding that diversity is a compelling governmental interest that can justify the narrowly-tailored use of race in public university admissions. 539 U.S. at 326-27. Grutter upheld an admissions policy that sought to admit a “critical mass” of minority students by considering race as one factor among many in a holistic, individualized process, when doing so was necessary to achieve the educational benefits of a diverse student body.
Fisher first challenged UT’s policy after being denied admission in 2008. Under UT’s policy, most freshmen are admitted using a percentage plan that guarantees admission to Texas high school students in approximately the top 10 percent of their class. The remaining freshmen are admitted through a holistic review process that combines each applicant’s SAT score and grades with her “Personal Achievement Index” comprising numerous other factors including race. UT’s policy was designed to comply with Grutter.
Fisher did not qualify under the percentage plan and challenged only the policy’s holistic review component, arguing that it overstepped Grutter or, alternatively, that Grutter should be overruled. The district court granted summary judgment in favor of UT, and the Fifth Circuit affirmed. In Fisher I, the Supreme Court reversed in favor of Fisher, holding that the Fifth Circuit had applied an incorrect legal standard by giving too much deference to UT in considering the narrow-tailoring requirement. Fisher I, 133 S. Ct. at 2420-21. The Court remanded to the Fifth Circuit to engage in a new, and apparently more rigorous, examination of UT’s admissions criteria to see whether it was consistent with Grutter, stating that the “reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” Id. at 2420 (emphasis added).
On remand, the Fifth Circuit upheld the policy, Fisher appealed again, and the Supreme Court granted certiorari.
The Fisher II Opinion
In Fisher II, the majority opinion articulated three controlling principles. 136 S. Ct. at 2207-08. First, the use of race must withstand strict scrutiny. Second, if the university chooses to “pursue the educational benefits of student body diversity,” and articulates “a reasoned, principled explanation” for that choice, its conclusion that diversity serves its educational goals is entitled to judicial deference. Third, the university nonetheless bears the burden of proving that “race-neutral alternatives that are both available and workable do not suffice,” a determination to which “no deference is owed.”
The Court concluded, among other things, that the record established that UT “articulated concrete and precise goals” that mirrored the compelling interest in diversity that the Court had previously approved in Grutter. Id. at 2211. The Court concluded that “a reasonable determination was made that the University had not yet attained its [diversity] goals.” Id. at 2212.
Notably, although the record in the case was extensive, the decision did not declare that any particular type of evidence was necessary to demonstrate narrow tailoring.
The Court rejected Fisher’s emphasis on the purportedly race-neutral percentage plan, explaining that percentage plans, “though facially neutral,” “are adopted with racially segregated neighborhoods and schools front and center stage.” Id. at 2213. The Court then stated that “to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this Court’s cases have defined it.” Id. at 2213-14.
Justice Alito dissented, criticizing the Court’s deference to UT without requiring UT to articulate specific objectives, such as numerical metrics for critical mass. Id. at 2215-43. This, he argued, made the narrow-tailoring inquiry “impossible.” Id. at 2222.
The Court’s opinion includes several caveats, including the explicit statement that UT’s program is sui generis. Id. at 2208. This language may limit the opinion’s value for prospective guidance.
Nonetheless, Fisher II appears to soften Fisher I’s standard for race-conscious admissions policies. The decision importantly concedes that universities—rather than the courts—are best positioned to assess the benefits of diversity on their campuses and how to achieve those goals. The opinion thereby eschews the Fifth Circuit’s focus on critical mass and how specifically UT had to define metrics for critical mass.
Fisher II confirms Grutter’s holding that a university’s pursuit of diversity can constitute a compelling government interest. Consistent with Grutter, a university must carefully evaluate how the benefits of diversity relate to its specific mission and circumstances. A university must show that any available and workable race-neutral alternatives are “insufficient” to meet diversity goals and, if it adopts a race-conscious policy, must utilize an individualized, holistic review such as that of UT, where race is but a “factor of a factor of a factor.” Id. at 2207.
Giving Universities Deference
In perhaps the most significant sentence for universities crafting admissions policies, the majority opinion states, “[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.” Id. at 2214. The opinion thus recognizes that more than one policy might survive under this standard and that universities, like states, “can serve as ‘laboratories for experimentation.’” Id. Fisher II’s reasoning implies that universities have some flexibility in the narrow-tailoring analysis to adopt policies tailored to their specific goals.
Dean Richlin is a partner in the Litigation and Administrative Departments at Foley Hoag LLP. Sarah Burg is a litigator in the firm’s Intellectual Property Department.