Supreme Court Puts New Pressure on Colleges to Justify Affirmative Action

Charles Dharapak, AP Images

The court declined to strike down the race-conscious admissions policy of the U. of Texas at Austin, which had been sued by Abigail N. Fisher (pictured), but the justices clarified how courts should decide whether such policies pass constitutional muster.
June 24, 2013

The U.S. Supreme Court's ruling on Monday in a lawsuit challenging race-conscious admissions at the University of Texas at Austin does not substantially alter the legal landscape for colleges, but it does put them under more pressure to justify such affirmative-action policies than they had been under before.

In its 7-to-1 decision in Fisher v. University of Texas at Austin (No. 11-345), the court declined to substantially rethink either of its two major rulings allowing race-conscious admissions: its 2003 Grutter v. Bollinger decision, upholding race-conscious admissions at the University of Michigan's law school, or its 1978 Regents of the University of California v. Bakke case, involving the university's Davis medical school, which established the precedent that the educational benefits of diversity justify some limited consideration of applicants' race by higher-education institutions.

The majority's opinion in the Texas case did, however, substantially clarify how courts should decide whether such race-conscious policies pass constitutional muster, holding that the U.S. Court of Appeals for the Fifth Circuit and a federal district court had erred in showing deference to the university in its choice of a means to achieve diversity.

Rather than accepting on good faith the university's assertions that no workable race-neutral policies would achieve the levels of diversity it sought for educational reasons, the justices said, the lower courts should have performed a "searching examination" of whether the university had adequately considered the alternatives available.

The lower courts also should have subjected the race-conscious admission policy at issue in the case to strict scrutiny over whether it was narrowly tailored to serve a compelling government interest, the Supreme Court said.

Seeking 'Race-Neutral Alternatives'

The "strict scrutiny" standard that the court has established for government policies that consider race "imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice," said the majority opinion, written by Justice Anthony M. Kennedy.

In addition, the majority held, "strict scrutiny does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice."

Experts on higher-education law said on Monday that the Fisher ruling places a greater burden on colleges to justify their policies in court, by making it clear that the courts can no longer show the same deference to their choice of affirmative-action policies as they have to colleges' assertions that a racially and ethnically diverse student body furthers their educational missions.

Scott R. Palmer, a managing partner at Education Counsel, a law and policy firm that advises colleges and higher-education associations, said the Supreme Court's Grutter decision had shown deference to colleges' judgments about the educational need for their policies without being clear "where the lines of that deference began and ended."

The court's decision in the Fisher case, he said, makes clear "that the burden and responsibility is on the institution to demonstrate that it has established a narrowly tailored program to achieve its compelling interest."

In a statement issued on Monday, Molly Corbett Broad, president of the American Council on Education, said the Fisher ruling "is a complex one, but it does make clear that colleges and universities will have work to do," by showing that any race-conscious admission policy "is precisely tailored to meet the goals of achieving the educational benefits that flow from diversity."

In an interview, Ada Meloy, that group's general counsel, said the requirement that such policies withstand strict scrutiny was included in the Grutter majority's opinion but "has not been described with as much clarity" as in Monday's Fisher decision.

'Strict Means Strict'

Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, which had filed a friend-of-the-court brief in support of Texas' policies, issued a statement that said the ruling "added a wrinkle by sharpening the standard that universities must meet," requiring them to demonstrate the absence of workable race-neutral alternatives to their policies.

Among critics of such policies, Roger B. Clegg, president of the Center for Equal Opportunity, said the Fisher decision's language dealing with strict scrutiny clarifies "that strict means strict, and that universities cannot be taken on their word in deciding whether their use of racial preferences is narrowly tailored to a compelling interest."

As a result of Monday's decision, "good faith on the part of universities is not going to be assumed," Mr. Clegg said. "My side is better off today than it was a year ago," he said, because "a bad court-of-appeals decision has been vacated."

But Terence J. Pell, president of the Center for Individual Rights, which had provided legal assistance to the plaintiff in the Grutter case, expressed frustration based on his view that the Supreme Court still has yet to define what standard colleges should meet when it calls for the "strict scrutiny" of their race-conscious policies.

The Fisher decision, he said, "leaves everybody with the impression this is just a matter of word play," and "as long as the schools describe what they do in the right words, they can do what they want to do."

For his part, William C. Powers Jr., president of the University of Texas at Austin, said lawyers for his institution had argued the case based on the assumption the courts would apply strict scrutiny to its policies, and "we think the record supports a favorable decision" under a strict-scrutiny standard.

'Bad News' and a Major Victory

The Pacific Legal Foundation, which had submitted a friend-of-the-court brief on behalf of Abigail Noel Fisher, the rejected white applicant to Texas who was the plaintiff in the case, offered a different take on the university's prospects under renewed legal scrutiny.

In a statement it issued on Monday, one of its lawyers, Meriem L. Hubbard, called the Supreme Court's decision to remand the case to the lower courts for further review "bad news for UT-Austin" because the race-conscious admission policy set to undergo further review "simply isn't needed for the university's claimed purpose of achieving a racially diverse student body."

The Supreme Court's decision not to overrule its own Grutter decision and its past holdings that race-conscious admissions policies can serve a compelling government interest were hailed by some supporters of such policies as a major victory. The statement issued by Ms. Ifill of the NAACP Legal Defense and Educational Fund, for example, characterized the decision as having "endorsed the benefits of student-body diversity in colleges and universities."

The majority opinion in Fisher contained little discussion of the Grutter precedent, and five of the justices who joined it are seen as generally hostile to race-conscious admission policies. Among them, Justice Antonin Scalia and Justice Clarence Thomas offered separate concurring opinions saying they would have overturned the Grutter decision.

"The petitioner in this case did not ask us to overrule Grutter's holding that a 'compelling interest' in the educational benefits of diversity can justify racial preferences in university admissions," Justice Scalia wrote.

Mr. Clegg of the Center for Equal Opportunity said the Supreme Court might have had a majority behind a broader ruling striking down the Grutter precedent. But, he said, Bert W. Rein, a lawyer for Ms. Fisher, helped open the door for a ruling narrowly focused on how lower courts had analyzed the policy at issue when, in oral arguments before the Supreme Court, he said the court could strike down the Texas policy without overruling its Grutter precedent.

In overturning a summary judgment in Texas' favor that the Fifth Circuit had upheld, the Supreme Court's decision paved the way for the case to go to trial. Mr. Clegg predicted that the Supreme Court might revisit the case, and rule on the broader questions, after such proceedings. A trial over the policy, he said, might produce information about the policy, including its benefits and drawbacks, "not available to the court now."