Taking Notes in ClassIn a decision sending waves through the tertiary education community and beyond, the U.S. Supreme Court upheld—by a four to three vote—the University of Texas’ (the University) race-conscious admissions program as lawful under the Equal Protection Clause.  In Fisher v. University of Texas at Austin, a student rejected under the University’s admissions policy challenged the constitutionality the policy claiming it treated people unequally on the account of race.  At the time, the admissions policy aimed to create a more diverse student body by offering applicants graduating within the top decile of their class admission.  Under the admissions policy, the remaining seats of the class are filled by applicants who are reviewed holistically using various factors, including race. In upholding the admissions policy, the Court found that the University’s admissions process withstood the most stringent judicial review—strict scrutiny.  To satisfy this level of review, the University demonstrated that it had a compelling interest which was narrowly tailored and the use of race was necessary to accomplish that interest.  In arriving at its conclusion, the Court evaluated and rejected four arguments challenging the University’s satisfaction of strict scrutiny.

First, the Court disagreed that the University “had not articulated its compelling interest with sufficient clarity.”  As support for its disagreement, the Court highlighted that the University conducted a year-long study concluding its use of race-neutral admissions policies were unsuccessful in promoting its desired educational values.  To that end, the University formally proposed the use of a race-conscious program that “identifie[d] the educational values it [sought] to realize through its admissions process.”  The Court found that the 39-page proposal offered a “reasoned, principled explanation” for the  identified goals, which centered on creating an environment to prepare students for a diverse workforce, and were in line with compelling interests previously endorsed.  Further, the Court also noted that the testimony and affidavits were consistent with the written proposal.

Second, the Court found that the record contradicted the petitioner’s contention that the University had attained its identified goals when it “achieved critical mass” of minority enrollment through the use of race-neutral admissions policies.  In rejecting this argument, the Court pointed to demographic data showing stagnation of minority students’ enrollment and anecdotal evidence of “feelings of loneliness and isolation” which was supported by quantitative data.  As a result, the Court found the University’s assessment of its need to use a race-conscious policy to achieve its unattained goals was “a reasonable determination….”

Next, the Court rejected the claims that a race-conscious admissions policy was unnecessary given its limited impact on advancing the University’s identified compelling interests.   Though noting that the increases in certain under-represented minority groups may be categorized as limited, the Court found those increases “had a meaningful, if still limited, effect” on diversity.  It further reasoned that “it is not a failure of narrow tailoring for the impact of racial consideration to be minor.”  Instead, the Court noted that the above attribute “should be a hallmark of narrow tailoring, not evidence of unconstitutionality.”

Last, the Court evaluated and ultimately rejected the race-neutral options suggested by the petitioner.  Additionally, the Court relied on evidence submitted by the University demonstrating that it had unsuccessfully tried race-neutral alternatives.  Taken together, the Court concluded that “none of petitioner’s suggested alternatives—nor other proposals considered or discussed…have shown to be “available” and “workable” means through which the University could have met its educational goals….”

Despite its holding, the Court noted the need to evaluate and “tailor [the] approach in light of changing circumstances ensuring that race place no greater role than is necessary to meet [the University’s] compelling interest.” In fact, the Court repeatedly highlighted that the ongoing collection and consideration of data relating to the race-conscious admissions policy would be essential to “satisfy strict scrutiny in years to come.” Furthermore, the Court cautioned that “[t]he fact that this case has been litigated on a somewhat artificial basis, furthermore, may limit [its] value for prospective guidance.”

Although the Court recognized that diversity-related benefits are compelling interests that may justify the use of race in admissions, it noted that such benefits must be directly tied to an institution’s identified educational values and goals.  Further, institutions must be able to show that using available race-neutral strategies alternatives will not achieve the identified goals.  Significantly, it is important that colleges and universities engage in ongoing qualitative and quantitative objective data collection, analysis and evaluation of its policies and procedures in light of this decision.  In so doing, institutions will place themselves in a better position to defend a constitutional challenge to a current or future a policy or procedure.

The full text of the court’s decision may be found here.