On June 23, 2016, the U.S. Supreme Court held for the second time that race may be taken into account when public universities and colleges admit students.
Executive Summary: On June 23, 2016, the U.S. Supreme Court held for the second time that race may be taken into account when public universities and colleges admit students. In a 4-3 decision (Justice Kagan recused herself based on her prior work on the case as Solicitor General), the Court held that the University of Texas at Austin's (UT) admissions policy, which uses a variety of factors including race to increase the diversity of its student body, does not violate the Equal Protection Clause of the Constitution. Fisher v. University of Texas at Austin, Case No. 14-981.
UT's Admissions Policy
Under UT's admissions policy, up to 75 percent of the freshman class is admitted using the so-called "Top Ten Percent Plan," under which UT guarantees admission to Texas high school students who graduate in the top 10 percent of their class. The remainder of the incoming class is admitted through a review of several factors, including their "Academic Index," which consists of factors such as SAT scores and high school grades, and their "Personal Achievement Index," which considers several factors such as work experience, extracurricular activities, community service and race.
White Applicant Sues UT Challenging Race Admissions Policy
Abigail Fisher, a white applicant who was denied admission to UT in 2008 and was not in the top 10 percent of her class, sued UT claiming that UT's admissions policy was unconstitutional because it placed her and other white applicants who were not in the top 10 percent of their class at a disadvantage by including race in the factors considered for admission.
The federal trial court ruled in favor of UT, and the Fifth Circuit Court of Appeals affirmed this decision.
Majority Opinion Finds UT's Desire to have Diverse Student Body Compelling
Fisher sought Supreme Court review, arguing that UT failed to state with sufficient clarity its compelling reason for including race as a factor for consideration in admissions. The Court disagreed with Fisher, finding that UT's desire to provide its students the educational benefits that flow from having a diverse student body was a compelling interest sufficient to overcome the strict scrutiny standard. In doing so, the Court reiterated three controlling principles to be utilized when applying the strict scrutiny standard. First, a university may not consider race "unless the admissions process can withstand strict scrutiny." Second, if a university successfully articulates a "reasoned principled explanation" for its policy, its conclusion that diversity serves its educational goals should be given judicial deference. Third, when determining whether the use of race is narrowly tailored to achieve a university's permissible goals, the university bears the burden of proving that "race-neutral alternatives that are both available and workable do not suffice."
In examining UT's admissions policy, the Court noted that UT had conducted months of study before adopting its policy and that its prior race-neutral policies had not been successful. It further held that "the University articulated concrete and precise goals" such as ending stereotypes, promoting "cross-racial understanding," preparing students for "an increasingly diverse workforce and society," and cultivating leaders with "legitimacy in the eyes of the citizenry," and gave a reasoned and principled explanation for its decision.
Continuing Obligation to Satisfy Strict Scrutiny Burden in Light of Changing Circumstances
The majority opinion makes clear that its decision does not necessarily have broader applicability. Because Fisher did not challenge the Top Ten Percent Plan (for which she was not eligible), the record before the Court was nearly devoid of information about the students who secured admission through the Plan. Thus, the Court could not assess how this Plan contributed to the school's diversity as compared to the holistic review.
Likewise, the Court made clear that UT must periodically reassess the constitutionality and efficacy of its admissions program in light of its experience and the data it has collected to ensure that "race plays no greater role than is necessary to meet its compelling interest."
Employers' Bottom Line
The Court's decision does not affect employers who are government contractors because their affirmative action obligations are governed largely by presidential Executive Orders such as E.O. 11246. The Court's opinion may also have limited applicability since it did not evaluate UT's Top Ten Percent Plan. Nevertheless, the decision should be welcome news for public universities that have conducted studies similar to UT's before including race as an admissions factor. Moreover, the decision indicates that the Supreme Court is willing to give public universities some latitude when they include race as one factor in their admissions process.
If you have any questions about the Court's decision or other affirmative action or diversity issues or employment issues impacting higher education providers, please feel free to contact the authors of this Alert, Nancy Holt, nholt@fordharrison.com, counsel in our Washington, DC office, or Bennet Alsher, balsher@fordharrison.com, partner in our Atlanta office. You may also contact the FordHarrison attorney with whom you usually work or any member of FordHarrison's AA/OFCCP/Diversity Practice Group or Education Practice Group.