On June 23, 2016, in its second time hearing Fisher v. University of Texas, the U.S. Supreme Court upheld the affirmative action admissions program at the University of Texas at Austin. The Court held that the program is lawful under the Equal Protection Clause because it is narrowly tailored to achieving concrete, compelling goals tied to the educational benefits flowing from student body diversity. The Court signaled that its holding was necessarily limited to the unique circumstances at UT, where only 25% of the first-year class is admitted under a framework considering race as one among many factors. Despite this limitation, under Fisher, higher education institutions may continue to use holistic, race-conscious admissions practices, so long as such practices are grounded in a reasoned determination that the educational value achieved from considering race as a factor cannot be achieved through other means.

The Legal Background: Race as a “Plus” Factor in Undergraduate Admissions

Consideration of race as a “plus” factor in admissions was endorsed by the U.S. Supreme Court in Bakke v. Regents of the University of California in 1978. Under Bakke, a university may consider an applicant’s race along with test scores, grades, extracurricular activities, hobbies, and special achievements. In 2003, the Supreme Court affirmed Bakke in Grutter v. Bollinger, which held that universities may take race into consideration as one factor among many in selecting incoming students.

In a companion case to Grutter, Gratz v. Bollinger, the U.S. Supreme Court made clear that a point system, which assigns values for race, geography, legacy or alumni relationships, and other factors, was not sufficiently individualized and narrowly tailored to survive strict scrutiny. Race could not increase the chances of admission or be dispositive in any sense, but it could be considered as part of a holistic, subjective analysis of each applicant.

Under Bakke and Grutter, student or educational diversity is a compelling interest that may be served by holistic, race-conscious admissions policies. As Justice Powell wrote in Bakke, “attainment of a diverse student body. . . is a constitutionally permissible goal for an institution of higher education,” because it “serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.” But as these decisions made clear, any consideration of race to achieve this interest must be narrow, necessary, and not overly prescriptive, within the context of a highly individualized review of each applicant.

The University of Texas at Austin’s Admissions Policy

A Texas law requires that the University of Texas at Austin (UT) admit all high school seniors who rank in the top ten percent of their high school classes (known as the Top Ten Percent Plan). Up to 75% of the first-year class may be filled by this Plan. For the remaining 25% or so of the class, UT uses a combination of an “academic index” (based on SAT score and academic performance) and a “personal achievement index” (PAI). PAI is based on a holistic review of an application, including an applicant’s essays, supplemental information such as letters of recommendation and artwork, and an assessment of the applicant’s potential contributions to the student body. Potential contributions are evaluated based on leadership experience, extracurricular activities, and other “special circumstances,” including socioeconomic status, family responsibilities, and race. This inclusion of race as a subfactor in one index used to make admissions decisions is driven by UT’s finding of meaningful differences in the racial and ethnic composition of its undergraduate population compared to the state’s population, and in its determination that a diversity of perspectives on campus serves important educational goals.

Fisher I: The Supreme Court Remands for Strict Scrutiny of University of Texas at Austin’s Admissions Policy

In 2008, Abigail Fisher, a young Caucasian woman who graduated from a Texas high school but was not in the top ten percent of her class, was denied admission to UT under the holistic, full-file review given to applications outside the Top Ten Percent Plan. She filed suit against UT, arguing that its admissions policy considering race as a factor violated the Equal Protection Clause of the Fourteenth Amendment.

UT Persuades the District Court and the Fifth Circuit

UT defended its practice by arguing that its use of race was a narrowly tailored means of pursuing greater diversity, consistent with the precedents set by Grutter and Gratz in 2003. UT emphasized that Ms. Fisher could not prove either that she would have been admitted under a race-neutral policy, or that she suffered any cognizable injury in being denied admission, having subsequently graduated from Louisiana State University and obtained a job in finance. The U.S. District Court for the Western District of Texas and the U.S. Court of Appeals for the Fifth Circuit agreed. The District Court granted summary judgment for UT, and the Fifth Circuit affirmed.

The Supreme Court Affirms Bakke and Grutter But Remands for Strict Scrutiny

In a 7-1 decision, the U.S. Supreme Court reversed and remanded the case to the Fifth Circuit because the lower court did not apply the correct level of scrutiny.

The Supreme Court held that although the Equal Protection Clause permits consideration of race in undergraduate admissions decisions, consistent with Bakke as interpreted by Grutter, any consideration of race is subject to strict judicial scrutiny to determine whether the policy is “precisely tailored to serve a compelling governmental interest.” Under strict scrutiny, the use of race must further a compelling interest and must be necessary to do so. The Supreme Court instructed the lower court that “strict scrutiny must not be strict in theory, but fatal in fact,” but it must also “not be strict in theory but feeble in fact.” In so doing, the Supreme Court reaffirmed the Grutter rule, and required the Fifth Circuit assess whether the program truly passed strict scrutiny.

The Fifth Circuit Affirms UT’s Policy Again

In 2014, on remand, the Fifth Circuit concluded that UT’s policy passed strict scrutiny and again affirmed the lower court’s grant of summary judgment for UT. Applying the more “exacting scrutiny” ordered by the Supreme Court, the Fifth Circuit concluded that the University engaged in holistic review of applicants outside of the Top Ten Percent Plan, that the impact of the review on minority admissions was narrow, and that the holistic review served the compelling interest of ensuring “the richness of the educational experience” at UT.

The Court reasoned that if the University could rely only on the diversity achieved from the Top Ten Percent Plan solely because of the de facto segregation of schools in Texas, it would not be able to achieve “the rich diversity that contributes to its academic mission” that was endorsed by Bakke and Grutter. UT Austin’s holistic review program was “nearly indistinguishable from the University of Michigan Law School’s program in Grutter” and “was a necessary and enabling component of the Top Ten Percent Plan by allowing UT Austin to reach a pool of minority and non-minority students with records of personal achievement, higher average test scores, or other unique skills.”

UT’s admissions policy satisfied the Bakke and Grutter framework because it focused on “critical mass,” defined by “a broader view of diversity,” rather than achieving a certain quota. UT’s holistic review served to “patch the holes” that the more mechanical Top Ten Percent Plan left in achieving campus diversity without setting a hard-and-fast percentage of minority students to reach.

Fisher II: UT’s Policy Is Narrowly Tailored to a Compelling Academic Interest in Diversity

Ms. Fisher appealed, and the Supreme Court granted certiorari again, hearing oral argument in December 2015. On June 23, 2016, the Supreme Court issued a 4-3 decision affirming the Fifth Circuit’s confirmation of the legality of UT’s admissions policy.

Although there was no dispute that under UT’s policy, race could make a difference in whether an application was accepted or rejected, the Court concluded that UT had met its burden of demonstrating that it had concrete, measurable goals for educational diversity and that it was not able to enroll students who could offer underrepresented perspectives without a race-conscious policy. Specifically, UT seeks to provide “an educational setting that fosters cross-racial understanding” and “enlightened discussion and learning,” and prepares students “to function in an increasingly diverse workforce and society.” UT tried numerous alternatives, including creating scholarship programs, increasing its recruitment budget, and using race-neutral holistic review processes that enhanced consideration of socioeconomic and other factors, and had the demographic data to show that these alternatives did not achieve its goals. Moreover, under the UT policy, “race is but a ‘factor of a factor of a factor’ in the holistic-review calculus.” As a result, UT met its burden of showing that the admissions policy under which it denied the petitioner’s application was narrowly tailored toward a compelling interest.

Notably, the Court rejected the petitioner’s assertion that considering race was not necessary because it had only a minimal impact in advancing UT’s goals for educational diversity. Instead, the Court noted, “the fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality.”

What Fisher Means for Public Higher Education Institutions

Relevant to the Court’s highly fact-driven assessment of UT’s approach was the fact that 75% of first-year students were not admitted under the race-conscious admissions program, and instead under a program which is mandated by state statute and over which UT has no control. As a result, Fisher II’s impact may not provide meaningful direction for institutions that consider race as a factor in all of their admissions decisions, as the Supreme Court directly acknowledged.

Nonetheless, Fisher I and II offer some important guidance for institutions assessing their admissions policies and practices:

• An institution must be able to demonstrate clearly that the purpose or interest of considering racial characteristics is substantial, and that its use is necessary to the accomplishment of this purpose.

• Courts will generally defer to an academic judgment that educational benefits flow from student body diversity and certain “intangible characteristics,” so long as an institution can offer a reasoned, principled explanation for this conclusion and concrete, precise goals by which these benefits can be sufficiently measured. This enables courts to assess the policies adopted to reach them, as courts will give no deference to whether the use of race is narrowly tailored to achieve this educational goal.

• An institution must be able to prove that it cannot obtain the educational benefits of diversity “about as well and at tolerable administrative expense” without employing a race-conscious policy. In Fisher, UT provided a host of demographic data to support the need for its plan.

• Fixed quotas or use of percentages based on race or ethnic origin remain impermissible.

• Institutions should regularly evaluate student body data and the student experience to assess whether changing circumstances warrant revision of admissions practices. Specifically, institutions should continuously “scrutinize the fairness of its admissions program,” “assess whether changing demographics have undermined the need for a race-conscious policy,” and “identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.”