Caseflicks

Supreme Court of the United States • 2016

Fisher v. University of Tex. at Austin

579 U.S. 365 | 195 L. Ed. 2d 511 | 2016 U.S. LEXIS 4059 | 136 S. Ct. 2198 | 84 U.S.L.W. 4472 | 26 Fla. L. Weekly Fed. S 325

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Takeaway

In short, Fisher II upheld UT’s narrowly limited use of race in holistic admissions, while insisting that universities continually prove with evidence that race remains necessary to secure the educational benefits of diversity.

Background

The University of Texas at Austin filled most of its entering class under Texas’s Top Ten Percent Law, which guaranteed admission to qualifying Texas high-school students near the top of their classes. At the time relevant to Fisher’s application, the plan accounted for about three-fourths of the freshman class. UT filled the remaining seats through a holistic process that combined an Academic Index, based on grades and test scores, with a Personal Achievement Index. Race was one contextual consideration within the Personal Achievement Score, itself a component of the Personal Achievement Index.

After Grutter v. Bollinger permitted limited, individualized consideration of race in admissions, UT conducted a year-long review and concluded that its race-neutral admissions system was not achieving the educational benefits it associated with a diverse student body. In 2004, UT reinstated consideration of race in its holistic review. Abigail Fisher, a white applicant who was not admitted through the Top Ten Percent Plan, was denied admission to the 2008 freshman class and challenged the policy under the Equal Protection Clause.

The District Court granted summary judgment for UT, and the Fifth Circuit affirmed. In Fisher I, the Supreme Court vacated because the Fifth Circuit had given excessive deference to UT’s good faith rather than applying strict scrutiny to whether race-conscious review was narrowly tailored. On remand, the Fifth Circuit again affirmed summary judgment for UT. The Supreme Court granted review a second time and affirmed.

Issues

Issue #1

Whether UT’s use of race as one contextual factor in its holistic admissions review was permissible under the Equal Protection Clause.

Holding

Yes. On the record concerning Fisher’s 2008 application, UT’s limited race-conscious holistic-review program survived strict scrutiny.

Reasoning

Fisher I supplied the governing framework. A university may consider race only if it can satisfy strict scrutiny: its interest must be constitutionally permissible and substantial, and its use of race must be necessary to accomplish that interest. The educational benefits of student-body diversity are a compelling interest, but judicial deference is limited. Courts may give some deference to a university’s academic judgment that diversity serves its educational mission, but they owe no deference on whether the means chosen are narrowly tailored.

UT’s system treated race as a contextual subfactor rather than assigning predetermined points or automatically favoring members of selected racial groups. Race entered only during the assessment of the Personal Achievement Score, which itself was only one component of the Personal Achievement Index. The admissions officers who ultimately set score cutoffs did not know the individual applicants’ races or the factors underlying their scores. Race could affect an applicant’s assessment, but it was a limited ‘factor of a factor of a factor.’

The unusual role of the Top Ten Percent Plan constrained the case. That state-mandated plan, which Fisher did not challenge, had the largest effect on her admission chances because it reserved most freshman seats for top-ranked Texas high-school students. The record therefore contained limited information comparing the diversity contributions of students admitted under the percentage plan with those admitted through holistic review. The Court declined a further remand because the challenged program had operated for only three years when Fisher applied, UT could not alter the legislature’s percentage plan, and further litigation would yield little insight into the 2008 decision.

UT nevertheless remained subject to an ongoing strict-scrutiny obligation. Its approval in this case did not authorize permanent reliance on the same policy. UT must regularly evaluate data and student experience, reassess whether demographic or other changes alter the need for race-conscious review, and ensure that race plays no greater role than necessary to achieve its compelling interest.

Issue #2

Whether UT stated its compelling interest with sufficient specificity rather than relying on an impermissible racial quota or amorphous appeal to diversity.

Holding

Yes. UT identified concrete educational objectives tied to the recognized interest in the educational benefits of student-body diversity.

Reasoning

The Court rejected Fisher’s argument that UT had to specify a numerical ‘critical mass’ of minority enrollment. The compelling interest is not reaching a fixed number or proportion of students from a racial group; such a target would risk becoming an unconstitutional quota or racial balancing. A university therefore cannot be faulted for refusing to identify a precise enrollment number at which diversity’s benefits will be achieved.

At the same time, a university cannot merely invoke diversity in the abstract. Its objectives must be sufficiently measurable to permit meaningful judicial review. UT met that requirement by identifying specific educational aims: reducing stereotypes, promoting cross-racial understanding, preparing students for a diverse workforce and society, and cultivating leaders seen as legitimate by the public.

UT also gave a reasoned and principled explanation for pursuing those aims. Its 39-page 2004 proposal followed a year-long study of its race-neutral policies and concluded that those policies had not adequately fostered the educational setting UT sought. The proposal, supported by affidavits and testimony from admissions officials, linked its use of holistic review to the concrete educational goals recognized in Grutter and Fisher I.

Issue #3

Whether UT had shown a genuine need to consider race after using the Top Ten Percent Plan and race-neutral holistic review.

Holding

Yes. The record supported UT’s conclusion that its race-neutral measures had not yet achieved the educational benefits of diversity it sought.

Reasoning

Before adopting the challenged policy, UT conducted months of study, including interviews, data review, and deliberation. It concluded that its existing race-neutral programs had not sufficiently achieved its objectives. The Court found that UT’s decision was supported by both quantitative data and evidence about students’ experiences, rather than resting on a conclusory assertion that more minority enrollment was desirable.

The enrollment evidence showed little progress in the representation of African-American students during the race-neutral period. For example, African-American freshman enrollment was 4.1 percent in both 1996 and 2003. UT also presented classroom-level data: in 2002, 52 percent of undergraduate classes with at least five students had no African-American students, and 27 percent had only one. This evidence had relevance because representation can affect whether students encounter underrepresented perspectives in the academic setting.

UT also offered anecdotal evidence that minority students experienced isolation and loneliness under the prior system. The Court did not treat demographics as dispositive, but held that the combination of enrollment figures, classroom data, and student-experience evidence supported UT’s carefully reached conclusion that it had not obtained the educational benefits it sought before turning to limited consideration of race.

Issue #4

Whether the limited numerical effect of race-conscious review showed that UT’s consideration of race was unnecessary or not narrowly tailored.

Holding

No. A limited but meaningful effect supported, rather than defeated, the conclusion that the policy was narrowly tailored.

Reasoning

The record showed that the policy had a meaningful effect on the diversity of students admitted through holistic review. Between 2003 and 2007, the share of Texas holistic-review freshmen who were Hispanic rose from 11 percent to 16.9 percent, and the share who were African-American rose from 3.5 percent to 6.8 percent. The Court regarded these increases as evidence that race-conscious review made a difference, even though it affected only a limited part of the entering class.

The Court rejected the premise that race must substantially alter admissions results to be constitutionally justified. Narrow tailoring requires that race not be used more broadly than necessary. Thus, the fact that race played a role in only a small share of admissions decisions was a feature consistent with a carefully limited program, not proof that the program was unconstitutional.

Issue #5

Whether workable race-neutral alternatives would have achieved UT’s educational goals about as well as its limited consideration of race.

Holding

No. Fisher did not show that the proposed alternatives were available and workable means of attaining UT’s goals at the time of her application.

Reasoning

UT had already made substantial race-neutral efforts to recruit and enroll underrepresented students. It had expanded outreach, created scholarships, opened regional admissions centers, increased its recruitment budget, and organized more than a thousand recruitment events. It had also spent seven years using race-neutral holistic review after Hopwood. The Court concluded that Fisher did not identify a meaningful improvement on these already-tried measures that would have achieved UT’s goals at the relevant time.

Fisher’s proposal to place more weight on socioeconomic or other nonracial factors was not shown to be adequate. UT had attempted to increase diversity through enhanced consideration of socioeconomic circumstances and related factors before adopting the challenged policy. The Equal Protection Clause does not require a university to sacrifice either its academic standards or its broader conception of student-body diversity when a race-neutral alternative does not promote its compelling interest about as well.

The Court also rejected the proposal to admit more or all students solely through the Top Ten Percent Plan. Although facially race neutral, percentage plans may themselves be adopted with racial segregation in mind and are not necessarily race-blind in purpose. More fundamentally, class rank is a single metric that cannot capture the varied talents, backgrounds, experiences, and trajectories relevant to UT’s educational mission. An exclusive percentage plan could exclude applicants with distinctive strengths or unusual circumstances and would undermine the individualized assessment associated with multidimensional diversity.

Dissents

Justice Thomas

Reasoning

Justice Thomas joined Justice Alito’s dissent and separately reaffirmed his view that the Equal Protection Clause categorically prohibits state universities from using race in admissions. In his view, governmental racial classifications demean citizens by making race relevant to the allocation of benefits and burdens.

He argued that Grutter was wrongly decided because asserted educational benefits cannot justify racial discrimination. Justice Thomas would overrule Grutter and reverse the Fifth Circuit.

Justice Alito

Reasoning

Justice Alito argued that UT failed strict scrutiny because it never defined its interest with the clarity necessary for judicial review. In his view, phrases such as the educational benefits of diversity, reducing stereotypes, and fostering cross-racial understanding were too vague to show when UT’s goals would be achieved, whether race was necessary, or when race-conscious admissions could end.

He maintained that UT’s references to demographic disparities and classroom diversity were either impermissible racial balancing or unsupported by evidence that race-conscious holistic review solved the asserted problem. UT had not shown that students admitted through holistic review were more likely than Top Ten Percent admittees to enroll in classrooms lacking diversity, nor had it explained why underrepresentation of Asian-American students in some classrooms did not lead to comparable consideration of that group.

Justice Alito strongly criticized UT’s asserted interest in intraracial diversity. He read UT and the Fifth Circuit as assuming that African-American and Hispanic students admitted under the Top Ten Percent Plan were less desirable because they disproportionately attended segregated or lower-performing schools, had less privilege, or had lower test scores. He viewed those assumptions as unsupported, demeaning stereotypes and contrary to affirmative action’s traditional purpose of assisting disadvantaged students.

He also concluded that UT had not proved race-neutral holistic review, stronger outreach, greater consideration of socioeconomic status, or expansion of the Top Ten Percent Plan would not work about as well. Race-neutral holistic review, he emphasized, could still account for distinctive achievements, hardships, leadership, talents, and personal circumstances without treating race as a factor.

Finally, Justice Alito faulted the majority for effectively placing the burden on Fisher rather than UT. Strict scrutiny requires the university to justify its use of race, and gaps in UT’s evidence should count against UT, particularly at summary judgment. He would have entered judgment for Fisher or, at minimum, remanded for trial rather than uphold the policy on an incomplete record.