Caseflicks

Supreme Court of the United States • 2013

Fisher v. University of Texas at Austin

133 S. Ct. 2411 | 186 L. Ed. 2d 474 | 2013 U.S. LEXIS 4701 | 570 U.S. 297 | 81 U.S.L.W. 4503 | 24 Fla. L. Weekly Fed. S 399

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Takeaway

In short, this case reaffirmed that universities receive limited deference on the value of diversity, but none on whether their actual use of race is necessary and narrowly tailored under strict scrutiny.

Background

The University of Texas at Austin used two routes for undergraduate admission. Texas’s Top Ten Percent Law guaranteed admission to qualifying students who graduated near the top of their high-school classes. For remaining seats, the University used an Academic Index and a Personal Achievement Index. The Personal Achievement Index considered leadership, activities, family circumstances, socioeconomic background, and, after 2004, race as one factor in an individualized holistic review.

The University restored explicit consideration of race after Grutter v. Bollinger upheld limited race-conscious holistic admissions. It concluded that, despite increased minority enrollment under the Top Ten Percent Law and race-neutral measures, it lacked a sufficient “critical mass” of minority students to secure the educational benefits of diversity. Race was not assigned a fixed numerical value, but it could affect an applicant’s Personal Achievement Index.

Abigail Fisher, a white applicant denied admission to the 2008 entering class, alleged that the policy violated the Equal Protection Clause. The District Court granted summary judgment to the University, and the Fifth Circuit affirmed. The Fifth Circuit gave substantial deference both to the University’s definition of diversity and to its determination that race-conscious admissions were narrowly tailored. The Supreme Court vacated and remanded because the lower courts had not applied strict scrutiny correctly.

Issues

Issue #1

Whether courts must apply strict scrutiny to a public university’s use of race in admissions, notwithstanding the university’s educational judgment about diversity.

Holding

Yes. Race-conscious admissions classifications are subject to strict scrutiny; a court may defer only in limited measure to the university’s reasoned academic judgment that diversity serves its educational mission.

Reasoning

The Court treated Bakke, Gratz, and Grutter as controlling premises because the parties did not ask it to reconsider them. Those cases recognize that the educational benefits of a genuinely diverse student body may constitute a compelling interest, but they also require judicial review of every governmental racial classification under strict scrutiny.

A university may receive some deference when it makes a reasoned and principled academic judgment that student-body diversity is essential to its educational mission. But diversity cannot mean a predetermined racial composition or simple racial balancing. It must encompass a broad range of individual qualities and characteristics, with race serving only as one potentially relevant consideration.

Strict scrutiny remains searching even when a university invokes educational expertise. The government, not the applicant challenging the policy, bears the ultimate burden to establish that its racial classification rests on a clearly identified and unquestionably legitimate justification.

Issue #2

Whether the Fifth Circuit properly deferred to the University’s good-faith judgment that considering race was narrowly tailored and necessary.

Holding

No. The Fifth Circuit applied an unduly deferential standard; the University bears the burden to prove, without deference, that its actual use of race is narrowly tailored and necessary to achieve the educational benefits of diversity.

Reasoning

Once a university has identified a permissible diversity interest, it must still demonstrate that the means selected are specifically and narrowly framed to accomplish that interest. Courts, rather than university administrators, must determine whether the process evaluates applicants as individuals and avoids making race or ethnicity the defining feature of an application.

Narrow tailoring requires a careful inquiry into necessity. Although a university need not exhaust every imaginable race-neutral alternative, it must seriously and in good faith consider workable alternatives, and the reviewing court must ultimately be satisfied that no workable race-neutral alternative could achieve the educational benefits of diversity about as well at tolerable administrative expense.

The Fifth Circuit erred by presuming the University acted in good faith, placing the burden on Fisher to rebut that presumption, and limiting review to whether the University had made a good-faith decision. Good faith alone does not validate a racial classification; strict scrutiny requires close examination of evidence showing how the admissions program operates in practice.

Issue #3

Whether the Supreme Court should itself uphold or invalidate the University’s admissions plan on the summary-judgment record.

Holding

No. The Court vacated and remanded for the Fifth Circuit to determine under the correct strict-scrutiny standard whether the University supplied sufficient evidence of narrow tailoring.

Reasoning

Unlike Grutter, which followed a trial, this case came to the Court from cross-motions for summary judgment. The Court therefore did not decide in the first instance whether the existing record established that the University’s policy was narrowly tailored.

On remand, the Fifth Circuit had to assess whether the University offered evidence sufficient to prove that its consideration of race was necessary to obtain the approved educational benefits of a diverse student body. The Court stressed that conclusory assurances of benign intent could not substitute for that evidentiary showing.

The Court emphasized that strict scrutiny cannot be merely nominal: it must not be “strict in theory but feeble in fact.” At the same time, the Court did not overrule Grutter or hold that all race-conscious admissions policies necessarily fail strict scrutiny.

Concurrences

Justice Scalia

Reasoning

Justice Scalia joined the Court’s opinion in full because Fisher did not ask the Court to overrule Grutter. He nevertheless reaffirmed his view that the Constitution forbids governmental discrimination based on race, including in state-provided education, and that Grutter’s approval of racial preferences was wrong.

Justice Thomas

Reasoning

Justice Thomas joined the Court because the Fifth Circuit failed to subject the University’s policy to genuine strict scrutiny. He wrote separately to argue that Grutter should be overruled and that the Equal Protection Clause categorically prohibits a State from using race in higher-education admissions.

In his view, the Constitution requires government to treat people as individuals rather than as racial-group members. Strict scrutiny permits racial classifications only in extraordinarily narrow circumstances, such as a pressing national-security necessity or a properly supported effort to remedy the government’s own discrimination. The educational benefits said to flow from diversity do not meet that standard.

Justice Thomas argued that the University’s asserted interests resemble arguments once offered to defend segregation: that racial sorting improves leadership, racial understanding, social harmony, or educational opportunity. Brown and related desegregation cases rejected such claims as grounds for state-imposed racial classifications, and he saw no constitutional basis to credit their modern counterpart.

He also rejected the premise that race-conscious admissions are benign. In his view, preferential admissions harm rejected applicants, stigmatize minority students by casting doubt on their qualifications, and may place admitted students in institutions where they are less academically prepared than their peers. For Justice Thomas, history demonstrates that the State’s claimed good intentions cannot justify racial discrimination.

Dissents

Justice Ginsburg

Reasoning

Justice Ginsburg would have affirmed because the University’s policy followed the individualized, flexible model approved in Bakke and Grutter. It used no quota, treated race as only a small component of holistic review, followed a lengthy review of alternatives, and was subject to periodic reassessment of whether race remained necessary.

She rejected the suggestion that Texas’s Top Ten Percent Law was truly race-neutral. The law was designed against a backdrop of racially segregated high schools and neighborhoods, and it produced diversity precisely by relying on that segregation. In her view, calling such a policy race neutral obscures rather than eliminates its race-conscious design.

Justice Ginsburg maintained that institutions may candidly take account of race and the continuing effects of centuries of legally sanctioned inequality. She preferred transparent consideration of race to ostensibly neutral devices that may camouflage the same objective. Because the lower courts had already found the University’s limited policy adequately tailored under Bakke and Grutter, she saw no need for a remand.