Commentary

5 Lessons to Take From the Fisher Decision

June 24, 2016

The gasps heard in higher-education circles around midmorning on Thursday were not, as anticipated, expressions of dismay. Rather, with the U.S. Supreme Court’s 4-3 decision in Fisher v. University of Texas at Austin (Fisher II), the mood among higher-education leaders was one of apparent shock — and delight. Many had feared that the court’s hearing the case for the second time in three years would portend a significant pivot. Some had even forecast the end of affirmative action as a result.

Justice Anthony Kennedy defied most expectations, because he had never upheld a race-conscious policy during his many years on the court and had authored the first Fisher decision with a stern, reproachful pen pointed in the University of Texas’ direction. Now, in an analytically precise opinion, he reaffirmed a long line of precedents, making it clear that institutions of higher education may consider race and ethnicity in the design of their admissions policies so long as those policies are based on mission-driven goals of educational diversity, are well crafted to achieve those goals, and are justified by demonstrable need.

The Texas facts are unique. The university’s policy was a combination of race-conscious holistic review (accounting for admission of about a quarter of the incoming class) and the Texas Top Ten-Percent Plan (guaranteeing admission to students who graduate in the Top 10 percent of their high-school class to attend any public higher-education institution in the state). Neither that reality nor the court’s fact-intensive analysis should obscure the important lessons that ought to shape institutional policy development in public and private higher education institutions that consider race in admission.

Perhaps most strikingly, the court cast a spotlight on the complex mix of institutional evidence that can define success under federal nondiscrimination law. In reaffirming much of what we knew (or thought we knew), the court has expanded on key standards and concepts with a robust discussion of the quality and scope of evidence that may serve to meet "strict scrutiny" standards applicable to race and ethnicity-conscious practices.

What are the lessons that colleges may derive from this case, beyond the rich descriptions of evidence at every turn? Five central points stand out.

  • First, when defining goals associated with diversity, institutions should "capture diversity in all of its dimensions" and reflect not only "an interest in enrolling a certain number of minority students," even if such a focus is relevant. Put simply, goals and objectives can’t be reduced to pure numbers but must promote the actual "educational benefits that flow from student body diversity." At the same time, these goals should be sufficiently "concrete and precise," with specific expressions of educational interests, such as work-force preparation, cultivating leaders, and promoting cross-racial understanding.
  • Second, when establishing the necessity of consideration of race, institutions must arrive at an informed judgment based on data that demonstrate the need for the consideration of race in the first place. The University of Texas at Austin ably demonstrated a process involving "months of study and deliberation, including retreats, interviews, [and] review of data" to support its judgment about the necessity of considering race. Statistical evidence, including relevant demographic data "bolstered by further, more nuanced quantitative data," carried the day, as the university demonstrated need by noting that only 21 percent of undergraduate classes with five or more students in them had more than one African-American enrolled. Crucially, Austin paired this statistical data with qualitative evidence, including the experiences of loneliness and isolation reported by minority students.
  • As a corollary to this evidence of necessity, institutions must engage in consideration and pursuit (where appropriate) of race-neutral means that mitigate or eliminate the need to consider race in admissions. In meeting this standard, which was the focus of the court’s inquiry in Fisher I, the university demonstrated "extensive evidence" of race-neutral efforts not just in admissions but also throughout the spectrum of enrollment activity. Extensive outreach, new scholarship programs, and expanded recruitment — coupled with significant emphasis on race-neutral factors in the admission process — made the difference.

    Notably, the court rebuffed the notion of expanded reliance on percentage plans as a panacea obviating the need for any consideration of race. Echoing Justice Ruth Bader Ginsburg’s Fisher I dissent, the court observed: [1] that percentage plans resembling those in Texas are hardly race-neutral, given that they put "racially segregated neighborhoods and schools front and center stage;" and [2] the "single metric" or "blunt instrument" of class rank may compromise the multifaceted diversity that universities seek.

  • Third, race-conscious policies must yield evidence of "meaningful, if … limited effect on the diversity" of the relevant class. Notably, even though the numerical impact associated with Texas’ challenged policy was "minor," the policy resulted in a 54-percent increase among Hispanic students and a 94-percent increase among African-Americans.
  • Fourth, the underpinning of all of this — holistic review of applicants — must be a process that is rigorous and data-driven, conducted in a consistent way by well-trained professionals. And where race is part of the mix, it should be considered as "a relevant feature within the broader context of a candidate’s application" in an authentically "nuanced" way. Moreover, such consideration should not be rigid, mechanical, or isolated from consideration of the many background factors relevant to evaluation of each applicant.
  • Finally, the process of periodic review and evaluation of relevant policies, required under the law, must be real and robust. It should reflect "the experience the school has accumulated and the data it has gathered" and adhere to an "ongoing obligation to engage in constant deliberation and continued reflection" as circumstances change over time.

The court cast a spotlight on the complex mix of institutional evidence that can define success under federal nondiscrimination law.
Although the Fisher II decision arrived as a surprise to many, the simple fact of Texas’ win in a decision that echoes Grutter v Bollinger more closely than it does Fisher I doesn’t provide a green light on issues of race and diversity. To the contrary, the court’s endorsement of decades of precedent strikes a delicate but appropriate balance between the rigor of judicial review and the limited deference due to educational judgments informed by evidence. Thus the light cast on the challenged practices is more akin to a yellow one — affirming that institutions may indeed proceed with race-conscious practices, but must do so with care.

That balance between rigor and deference has been the hallmark of the court’s jurisprudence for decades. In Regents of the University of California v Bakke, the justices struck down the challenged policy while affirming avenues for consideration of race. In Grutter and in Gratz v Bollinger, a quarter-century later, the court upheld the University of Michigan Law School’s policy while striking down the university’s undergraduate policy. A decade later, in Fisher I, the court established more rigor in its framework while refusing to strike down Texas’s policy as unlawful. Indeed, in that case Justice Kennedy took pains to remind us that just as strict scrutiny was not "fatal in fact," neither could it be "feeble in fact."

The challenge for higher-education institutions now is to seize this opportunity — with the enlightenment offered in Fisher II — to strike their particular balance on their particular facts, consistent with the court’s pronouncements about strict scrutiny. To do so, they must ensure the kind of coherence, supporting evidence, and logic evident in the design, development, and implementation of the University of Texas’s race-conscious admission policy.

Arthur L. Coleman is a managing partner at EducationCounsel LLC. He served in the Clinton administration as deputy assistant secretary in the Department of Education’s Office for Civil Rights.