Fisher v. University of Texas
On June 23, 2016, the U.S. Supreme Court (“Court”), in a 4-3 decision
in Fisher v. University of Texas at
Austin (“Fisher”), held that the race-conscious admissions program used by
the University of Texas at Austin (“UT”) was lawful under the Equal Protection
Clause of the Fourteenth Amendment. This memorandum provides background on Fisher, the issues reviewed and a
synopsis of the recent ruling.
Background
In 2008, Abigail Fisher was denied admission to UT’s
freshman undergraduate class and sued alleging that UT’s consideration of race
as part of its holistic review process disadvantaged her and other Caucasian
applicants, in violation of the Equal Protection Clause. Abigail Fisher’s suit
focused on UT’s admissions process, which offers admission to any student who
graduates from a Texas high school in the top 10% of their class. UT then fills
the remainder of its incoming freshman class by combining an applicant’s
“Academic Index,” consisting of SAT scores and high school academic
performance, along with the “Personal Achievement Index,” a holistic review
containing numerous factors, including race.
Fisher I made its
way through lower courts and finally to the Supreme Court in 2013, ADEA was a
signatory to an amicus
brief in support of UT. In a 7-1 decision,
the Court held that UT may consider race as a factor as part of its holistic
review used to admit a portion of its undergraduate entering class. However,
the court emphasized that UT’s ability to consider race was subject to the
“strict scrutiny”1 standard and sent the case back to lower court for further
consideration. In remanding the case, the Court stated, “. . . strict scrutiny
must be applied to any admissions program using racial categories or
classifications.”2
On July 24, 2015, the lower court, U.S. Court of Appeals for
the Fifth Circuit held
that UT had met the strict scrutiny standard, leading the plaintiff, Abigail
Fisher, to once again appeal to the U.S. Supreme Court.
The Court heard oral arguments in Fisher II on Dec. 9, 2015 again ADEA joined other higher education
organizations in an amicus
brief in support of UT. This time the issue presented to the Court was
whether the Fifth Circuit’s re-endorsement of UT’s use of racial preferences in
undergraduate admission decisions can be sustained under the Court’s decisions
interpreting the Equal Protection Clause. On June 23, the Court affirmed the
Fifth Circuit’s ruling in Fisher II
validating the merits of “limited use of race in [UT’s] search for holistic diversity”
in college admissions.
The Ruling
In a 4-3, decision
Justice Kennedy wrote the majority opinion of the Court in Fisher II, joined by
Justices Ginsburg, Breyer, and Sotomayor. Justice Alito filed a dissenting
opinion in which Justices Thomas and Roberts joined. Justice Kagan recused
herself.
Rebutting Abigail Fisher’s arguments against UT’s admissions
process, Justice Kennedy wrote, “ . . . the compelling interest that justifies
consideration of a race in college admission is not an interest in enrolling a
certain number of minority students, but an interest in obtaining the
educational benefits that flow from student body diversity.” Furthermore,
Kennedy reasoned, “ . . . it remains an enduring challenge to our Nation’s
education system to reconcile the pursuit of diversity with the constitutional
promise of equal treatment and dignity.” However, along with the permission to
consider race in a holistic admissions process, Kennedy notes, “It is the
University’s ongoing obligation to engage in constant deliberation and
continued reflection regarding its admissions policies.”
Take Away
The status quo
survives, although narrowly written, the Court held that universities may use
race as one factor in a holistic admissions review process, but such deference
is not without boundaries. The Court provides guidance: data should be used to
scrutinize the fairness of admissions programs; there should be an assessment
as to whether changing demographics have undermined the need for a
race-conscious policy; and there should be an assessment, both positive and
negative, of the affirmative action measures it deems necessary. Lastly, the
Court admonishes that there is a “continuing obligation to satisfy the strict
scrutiny burden.”
Please consult counsel to determine how your institution
might be affected by the ruling in this case. If we can be of assistance in
this matter, contact Tim Leeth, C.P.A., ADEA Chief Advocacy Officer at
LeethT@adea.org.
Source: Valachovic, R, Knight, Y. Supreme Court Ruling in Fisher v. University
of Texas at Austin [Unpublished memorandum]. 2016. Washington, DC: American
Dental Education Association.
Updated August 15, 2016