The Supreme Court recently made it a bit more difficult for state universities to utilize race as one of the factors in their undergraduate admission processes. In Fisher v. The University of Texas at Austin, et al., No. 11-345, decided June 24, 2013, the Supreme Court effectively punted on the broader issue of whether using race as one of many factors is permissible under the Equal Protection and Due Process clauses of the Constitution. Instead, the Supreme Court sent the case back to the lower courts to determine whether the University’s use of race was narrowly tailored to achieve its stated goal of increased diversity in the classroom.
The University utilizes a two-pronged undergraduate admission process. Under the first prong, the University automatically admits to any public state college all students in the top 10% of their high school classes. Pursuant to the second prong, the University evaluates a student who has not been admitted pursuant to the 10% plan and assigns that student a numerical score. The score is based on a number of factors including the student’s background, work experience, extra-curricular activities, and race. After Ms. Fisher was denied admission to the University, she sued and argued that the use of the race-based factor in scoring an applicant violated the Equal Protection and Due Process clauses of the Constitution.
The Supreme Court began its analysis by recognizing the long-held rule requiring race based actions to meet strict scrutiny. See Regents of Univ. of Calif. v. Bakke, 438 U.S. 265 (1978). In order to comport with strict scrutiny analysis, the government must show a compelling interest that justifies the race-based action and also must show that its use of race is narrowly tailored to achieve such a goal. Turning to Ms. Fisher’s claim, the Court adhered to prior decisions stating that the attainment of a diverse student body and the commensurate educational benefits of such a diverse student body are constitutionally permissible goals for a university. See e.g. Bakke, id., Gratz v. Bollinger, 539 U.S. 244 (2003), and Grutter v. Bollinger, 539 U.S. 306 (203). The Court, quoting Grutter, also re-stated the proposition that lower courts could defer to the University’s judgment as to whether “[] such diversity is essential to its educational mission ….” The parties did not ask the Court to revisit that prior ruling.
While the majority decision authored by Justice Kennedy did not delve into whether race-based diversity in education rises to the level of a compelling state interest, Justice Thomas, in his concurring opinion, did. Relying on prior rulings that government interests with more significant impacts on education did not rise to the level of a compelling state interest sufficient to justify the use of race-based actions, Justice Thomas flatly stated that the alleged educational benefits flowing from a diverse student body “hardly qualify as a compelling state interest.” Indeed, Justice Thomas likened the University’s arguments to those made by segregationists, which have been categorically rejected.
While the Supreme Court granted deference to the University on the first prong of strict scrutiny analysis (compelling interest), the Court ruled that the lower courts should not defer to the University’s judgment on the second prong (narrowly tailored means). The Court required the judiciary to exercise its judgment and ensure that the race-based program was narrowly tailored to achieve the stated goal of increased educational benefits flowing from a diverse classroom. Importantly, and possibly indicative of things to come, the Court noted that “[n]arrow tailoring also requires that the reviewing court verify that it is ‘necessary’ for a university to use race to achieve the educational benefits of diversity.” In line with this, the “reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”
It is likely that this is not the Supreme Court’s last word on the issue. Because this case is being remanded back to the lower courts, one would expect the losing party to appeal any adverse decision. Whatever the eventual outcome, the decision will likely reverberate into other race based programs.