Diversity Programs Reconsidered after Supreme Court Ruling in Fisher v. University of Texas

The Supreme Court continues to erode affirmative action policies in a way that could eventually collapse race-conscious admissions policies, crucial to ensuring diversity in higher education. The Supreme Court, in a 7-1 vote with Justice Elena Kagan not taking part, ruled that the Fifth Circuit Court of Appeals did not apply the correct standard of strict scrutiny in deciding whether the University of Texas’ decision to use race as an admissions factor violated the U.S. Constitution’s guarantee of equal protection. In Fisher v. University of Texas, No. 11–345 (opinion available here), the Court vacated and remanded back to the Fifth Circuit, which previously upheld the University of Texas’ affirmative action plan. In so doing, the Supreme Court further complicated the efforts of all who work proactively to create a diverse student body, workforce, etc., by considering race a “plus factor” in an admissions program that considers the overall individual contribution of each candidate.

Fisher, a Caucasian applicant to the University of Texas who was denied admission, sued under the Equal Protection Clause of the Fourteenth Amendment, blaming her denied application on affirmative action. She argued that eliminating race-based factors and using race-blind alternatives would be able to produce a diverse student body to a satisfactory degree, and therefore race-conscious admissions ought to be eliminated.

The District Court granted summary judgment to the University. Affirming, the Fifth Circuit held that Grutter v. Bollinger, 539 U. S. 306 (2003), required courts to give substantial deference to the University, both in the definition of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal.

In his majority opinion, Justice Anthony Kennedy wrote that strict scrutiny requires a searching examination, and the University bears the burden to prove “‘that the reasons for any [racial] classification [are] clearly identified and unquestionably legitimate.’” Fisher, Slip Op. at p. 8. The majority perceived that, rather than perform this searching examination, the Fifth Circuit held petitioner could challenge only whether the University’s decision to use race as an admissions factor “was made in good faith.” Fisher, Slip Op. at pp. 8-12. The majority found that Fifth Circuit incorrectly presumed that the school had acted in good faith and gave Fisher the burden of rebutting that presumption. The majority held that the Fifth Circuit thus undertook the narrow tailoring requirement with an improper “degree of deference” to the school. Id.

The outcome of the Fisher decision is to send the case back to the lower courts to sort out, though each Supreme Court decision rejecting an affirmative action plan makes it more difficult for well-intentioned institutions to create diversity in their respective populations. Justice Ruth Bader Ginsburg used her dissent to attempt to provide an outline for the University of Texas to follow in defending its admissions program when the case returns to the Fifth Circuit. She also her used her dissent to remind the Court of the “lingering effects of ‘an overtly discriminatory past,’” and “the legacy of ‘centuries of law-sanctioned inequality’” which led to the need for affirmative action in the first place. Fisher, Slip Op., Dissent at p. 3.

The University of Texas’s Top Ten Percent plan, which was the predecessor to the challenged affirmative action plan, and which was advocated as a preferred alternative by Fisher, “grant[ed] automatic admission to any public state college, including the University, to all students in the top 10% of their class at high schools in Texas that comply with certain standards.” Fisher, Slip Op. at p. 3.

There are several problems with the “race-blind” Top Ten Percent plan, and others like it. Most notably, it seemingly does not make much of an impact on diversity, based upon the information in the Court’s decision, noting that the Top Ten Percent plan only increased African-American admissions 0.4% and Hispanic admissions 2.4%. Id.

Justice Ginsberg wrote that seemingly race-neutral alternatives fail because of persistent and enduring residential segregation that determines where students go to school, and that as such, “race consciousness, not blindness to race, …drives such plans.” Fisher, Slip Op., Dissent at p. 2. As she explained, “[O]nly an ostrich could regard the supposedly neutral alternatives as race unconscious.” Fisher, Slip Op., Dissent at p. 2.

Far from simply making a modest, “good faith” effort to meet constitutional scrutiny, the University of Texas, which considers race as but one of many plus factors in its admissions process, puts its admissions program up for regular review to determine whether its consideration of race remains necessary and proper to achieve the University’s education objectives. Fisher, Dissent, at p. 3. Ginsburg concluded that “Justice Powell’s opinion in [Regents of Univ. of Cal. v. Bakke, 438 U. S. 265] and the Court’s decision in Grutter require no further determinations.” Id.

Ultimately, the Court’s decision will raise difficult challenges for universities and institutions that want to have diversity programs which meet constitutional muster. Fortunately, though, Fisher does not shut the door on diversity recruiting. The Court maintained the framework created by Justice Powell’s opinion in Bakke, and enshrined in Grutter, allowing affirmative action to be a plus factor – notwithstanding Justice Thomas’s lengthy concurrence which would end consideration of diversity factors altogether. In Bakke’s principal opinion, Justice Powell recognized that state university “decisions based on race or ethnic origin…are reviewable under the Fourteenth Amendment,” 438 U. S., at 287, using a strict scrutiny standard, id., at 299. He identified the educational benefits that flow from a diverse student body as a compelling interest that could justify the consideration of race but noted that this interest is complex, encompassing a broad array “of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Id. at 315. See Fisher, Slip Op. at pp. 8-9.

Hopefully, on remand, the lower courts will subject the University of Texas plan to strict scrutiny, and find that their affirmative action program passes the test.