In Fisher v. University of Texas, the U.S. Supreme Court left intact the core principle, embodied in its earlier decisions, that college and university admissions policies and practices that give consideration to an applicant’s race can withstand constitutional scrutiny. In Regents of University of California v. Bakke, the U.S. Supreme Court held that strict scrutiny applies to admissions programs that give consideration to an applicant’s race, and that the educational benefit from having a diverse student body was a compelling state interest that could justify considering race in admissions. Part and parcel of the opinion was an understanding that courts would generally defer to schools’ views on what constituted an educational benefit. Then, in Grutter v. Bollinger, the Court reasserted and refined Bakke, holding that an admissions process could be aimed at creating a diverse student body and could consider race to do so, provided that the admissions process survived strict scrutiny.

The majority’s decision and holding: Despite speculation from some corners that the Court might use Fisher to overturn or limit Bakke and Grutter, the Court decided the case on much narrower grounds. Instead, the Supreme Court (in a 7-1 opinion written by Justice Kennedy) held more narrowly that the Fifth Circuit’s opinion upholding UT’s affirmative action program did not properly apply the strict scrutiny test, and therefore the Court vacated the Circuit’s opinion and remanded for the Circuit to apply the correct test.

Fisher first reiterates the holding of Grutter that courts defer to a school’s "educational judgment that such diversity is essential to its educational mission" (quoting Grutter). Importantly, the Court notes that the deference to a school’s determination is "not complete …. A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision." In short, for now, achieving a diverse student body remains a recognized compelling state interest. The Court noted, however, that this issue was not before it in this case. That statement—together with the Justices Thomas and Scalia concurrences—may presage a future challenge to the principle that diversity is a compelling interest.

Then, Fisher goes on hold that courts do not defer to a school’s determination that its "admissions process meets strict scrutiny in its implementation" (emphasis added). Thus, a college or university has the burden to show that the challenged "admissions processes ‘ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application’" and that the admissions process is narrowly tailored to achieve the goal of diversity, i.e., it is "‘necessary’ for a university to use race to achieve the educational benefits of diversity" (quoting Grutter and Bakke). As the Court put it: "strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice."

The Court held that the Fifth Circuit failed to apply the strict scrutiny standard to UT’s implementation of its admissions process. More specifically, the Court held that the Fifth Circuit was overly deferential to UT’s judgment on the second question—essentially asking only whether UT implemented its admissions process in "good faith" and placing the burden on Fisher to show that it was not. (In this sense, the Fisher opinion is properly viewed as a critique of the Fifth Circuit’s reasoning, not as a statement on the merits of either party’s position.) Therefore, the Court remanded the case to the Fifth Circuit, directing it to "assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity." On remand, the Fifth Circuit will likely decide the issue based on the record before it. But it could—on its own, or at the motion of either party—remand the case to the district court for further factual development if it believes that the Supreme Court’s opinion establishes a new standard that UT had no opportunity to meet before.

The concurrences: Justice Scalia wrote a one paragraph concurrence clarifying that he joins the majority only because the case did not challenge Grutter’s holding that a "‘compelling interest’ in the educational benefits of diversity can justify racial preferences in university admissions." He clearly would hold otherwise.

Justice Thomas wrote a lengthy concurrence stating that he views any use of race in admissions decisions as categorically prohibited by the Equal Protection Clause, and reiterating his view that Grutter was wrongly decided. He also opines that diversity is not a compelling interest, likening the arguments in favor of diversity to arguments in favor of segregation. He rejects the idea that any consideration of race can be benign, arguing that affirmative action harms not only white and Asian applicants, but also those admitted under affirmative action programs.

The dissent: Justice Ginsburg’s dissent makes two points. First, it states that the alternative admissions programs championed by Fisher—the Top Ten Percent Law, and holistic review—are not really race-neutral; but that is not problematic in Justice Ginsburg’s view. As Justice Ginsburg states: "government actors, including state universities, need not be blind to the lingering effects of an overtly discriminatory past, the legacy of centuries of law sanctioned inequality." In her view, explicit racial consideration is preferable to concealed racial considerations. Second, she states that she would uphold UT’s program because UT showed sufficiently that there is no race-neutral alternative to achieve the goal of diversity.

What Fisher means for Grutter and Bakke: The Fisher opinion does not reverse Grutter and Bakke, but it arguably gives more teeth to the strict scrutiny standard articulated in them and cabins the deference courts give to a school’s decisions. Although Fisher holds that courts should not defer to a school’s judgment about whether a given program is narrowly tailored to achieve diversity, it does not alter Grutter’s holding that courts should defer to a school’s reasoned judgment that diversity is a compelling interest. For now, the deference to a school’s determination that diversity is a compelling interest survives, so long as that determination is reasoned and principled.

What Fisher suggests about shaping admissions practices so they will withstand scrutiny: When schools decide that a diverse student body will further their educational mission, and decide to implement specific admissions practices to achieve diversity, they should ensure those decisions have been articulated and justified in a reasoned, principled way that will withstand strict scrutiny.

For now, courts continue to defer to a school’s reasoned determination that diversity is a compelling educational interest. Nonetheless, it will be advantageous to conduct and document an in-depth examination of whether, why, and how diversity is educationally beneficial, to meet the compelling state interest criterion.

Given the reason for the remand in Fisher, it will be even more important to demonstrate that the chosen admissions practices are narrowly tailored to achieving that goal. Schools should take care to, and document their efforts to, ensure that other admissions practices were considered and then rejected because they were unavailable, unworkable, or insufficient.

Because schools’ individual needs and circumstances shape their different educational goals and admission practices, schools should work closely with counsel to plan individualized processes for assessing educational goals and choosing admissions practices to meet them.

What Fisher suggests about shaping a litigation strategy and arguments: If an admissions practice is challenged in litigation, it will be important for schools to ensure that the courts use the proper standard to review the constitutionality of the program. Otherwise, any decision approving an admissions practice will be subject to reversal under Fisher. Schools should argue and prove that diversity is a compelling interest and that the challenged admissions practices meet the requirement of being narrowly tailored through presenting objective evidence. It will not do to urge the court to defer to the school’s own determination that its chosen admissions process meets the strict scrutiny, narrow tailoring requirements. It will be crucial for the school to argue, and establish through evidence, that no more race-neutral practices would achieve the goal of diversity. The more evidence of the inadequacy of other admissions practices—that they are unavailable, unworkable, or would not suffice—the better.

Next on the docket: Next fall, the Supreme Court will hear argument in Schuette v. Coalition to Defend Affirmative Action. The issue in that case is whether voters are allowed to ban affirmative action at state universities through ballot initiatives.

Authors: Kim, a partner, and Richard, an associate, are both members of Reed Smith’s Appellate Group. Kim and Paige Forster, an associate in the Appellate Group, filed an amicus brief in Fisher v. Texas on behalf of a diverse group of colleges and universities nationwide in support of the University of Texas affirmative action program. Kim, Richard, and Paige often work with Martha Hartle Munsch, who regularly advises higher education clients on a wide variety of issues.

Client Alert 2013-179