Race may be taken into account when public universities and colleges admit students, ruled the U.S. Supreme Court today. For the second time, the Court was asked to decide whether the University of Texas at Austin’s admissions policy, which uses a variety of affirmative action factors to increase the diversity of its student population, violates the Equal Protection Clause of the Constitution. In a 4-to-3 decision (with Justice Kagan taking no part in the decision), the Court ruled that the race-conscious admissions program in question is lawful under the Equal Protection Clause. Fisher v. University of Texas at Austin, 579 U.S. __ (2016).

White Applicant Denied Admission Challenged Policy

Abigail Fisher, a white applicant who was denied admission to the University of Texas at Austin, sued the University alleging that its use of racial preferences in undergraduate admissions decisions is unconstitutional. She asserted that by including race in its admissions decisions, the University disadvantaged her and other Caucasian applicants.

The District Court in Texas that considered Fisher’s claims ruled in favor of the University, and the Fifth Circuit Court of Appeals agreed. Fisher appealed to the Supreme Court and in 2013, the Court kept her claims alive by sending them back to the Fifth Circuit so that the University’s admissions policy could be evaluated under the proper strict scrutiny standard. The Fifth Circuit reexamined the policy but came up with the same result, ruling in favor of the University. Fisher appealed to the Supreme Court again.

Court Finds Compelling Interest In Diversity of Students

In Fisher I, the Court ruled that the University’s affirmative action process, in which race was only one factor in assigning a numerical admissions score, needed to further a constitutionally permissible and substantial purpose or interest in order to meet the strict scrutiny standard. In today’s decision, the Court found that the University’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.

Fisher had argued that the University failed to state more precisely what level of minority enrollment would constitute a “critical mass” at which time race would no longer need to be an admissions consideration. The Court rejected Fisher’s argument, stating that the educational benefits promoted by a diverse student body should not be reduced to pure numbers, especially in light of the fact that the University is prohibited from having a quota for minority student enrollment.

The Court also rejected Fisher’s assertion that the University had already achieved “critical mass” of minority enrollment, finding that the University had studied both statistical and anecdotal evidence that showed that race-neutral programs had not achieved its diversity goals. In addition, the Court rejected Fisher’s position that there were other workable race-neutral means of meeting the University’s educational goals.

University Must Continue to Evaluate Use Of Race In Admissions 

Although a slim majority of the Court upheld the University’s ability to use race as a factor in its admissions policy, the Court wrote that the University has a continuing obligation to satisfy the burden of strict scrutiny in light of any changing circumstances. It stated that the University must conduct periodic reassessments of its admissions program and continue to examine data to ensure that “race plays no greater role than is necessary to meet its compelling interest” in promoting the educational benefits advanced by diversity among students.

Three Justices Dissent

Chief Justice Roberts, as well as Justices Thomas and Alito, disagreed with their four colleagues in the majority. Justice Thomas wrote that “a State’s use of race in higher education admissions decision is categorically prohibited by the Equal Protection Clause.” Justice Alito separately wrote that the University had failed to show that its race-conscious plan was narrowly tailored to serve compelling interests so “[b]y all rights, judgment should be entered in favor of [Fisher.]”

Had Justice Antonin Scalia not passed away in February, he almost certainly would have voted along the lines of the dissenters. That would have resulted in an evenly divided court at 4-to-4. Justice Kagan did not participate because she had participated in the government’s part of the case when she was U.S. Solicitor General prior to being appointed to the Court. A 4-to-4 decision would have meant that the Fifth Circuit’s decision would stand, so the University would still have prevailed—but the decision would have had no precedential impact outside of the Fifth Circuit. But now, with Justice Scalia’s absence, the Supreme Court decision upholding the constitutionality of a race-conscious affirmative action plan is a precedential ruling that applies nationwide.

Affirmative Action in the Employment Context

Even though the Fisher case examined affirmative action in higher education admissions programs, the decision may have ripple effects in the employment context. By upholding the use of race-conscious affirmative action plans, the Court may have limited or foreclosed some constitutional challenges to affirmative action in employment policies as well. But race-based programs will still need to meet strict scrutiny standards to pass constitutional muster. Employers seeking a diverse workforce through the use of affirmative action plans will need to articulate the compelling interest that supports their use of race as a consideration in hiring, backed up by data and other evidence that no other race-neutral means are available to achieve the employer’s goal. As such, employers seeking to implement such policies should still proceed with caution.