Today the Supreme Court returned the challenge to the University of Texas’s affirmative action admissions program to the 5th Circuit Court of Appeals for reconsideration. The Court of Appeals, affirming the U.S. District Court, had rejected Abigail Fisher’s challenge to the admissions program, finding that the University had followed the Supreme Court’s requirements spelled out in 2003 in the case of Grutter v. Bollinger, which allow for consideration of race in the context of a holistic admissions process in which no application stands or falls solely on the basis of race. This ruling was premised on the contention, accepted by the Court in the famous 1978 Bakke decision, that a public university may have a compelling interest in having a racially diverse student body because of the educational advantages that this provides.
The University of Texas has been the target of several lawsuits over the past few decades challenging its admissions policy. These suits have been brought by white applicants who were denied admissions, even though some objective factors, such as test scores and high school academic records, suggested that they were academically stronger students than some minority students who were admitted to the University. In Bakke and Grutter, the Supreme Court had ruled that any consideration of race by a state university in making admissions decisions was constitutionally “suspect” under the 14th Amendment’s Equal Protection Clause, placing the burden on the university to show that such consideration was necessary to accomplish a compelling interest, and that the means adopted by the university were “narrowly tailored” to avoid unnecessary discrimination.
In response to the litigation over this issue, the Texas legislature had adopted a program under which the top 10% (rated academically) of high school graduates at each school would be entitled to admission to the University of Texas system at the college of their choice, including the flagship campus at Austin, and this program did achieve a certain degree of racial and ethnic diversity, mainly because of the de facto segregation of Texas public high schools as a result of disparities in income and housing opportunities for different groups. But UT-Austin was unsatisfied with the results of this program, and decided to reintroduce race explicitly as one among many factors that it would consider in making admissions decisions, having concluded that under the 10% program there wasn’t a sufficiently large “critical mass” of minority students at the Austin campus to avoid the situation where many classes had few if any minority students enrolled.
The lower courts construed Grutter to allow them to defer to the University’s judgment on this, provided that Fisher had not shown that the University made this decision to include race in its admissions process in “bad faith.” The Court, in an opinion by Justice Kennedy, found that this was a misapplication of Grutter. While a court might defer to the University’s judgment that it had a compelling interest in achieving racial or ethnic diversity in the classroom, there is to be no deference to the University’s judgment as to what kind of admissions process is necessary to achieve that goal. And, said the Court, it was inappropriate to place the burden on the plaintiff to show “bad faith” on the part of the University.
“The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal,” wrote Justice Kennedy. “On this point, the University receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that the means chosen to accomplish the government’s asserted purpose must be specifically and narrowly framed to accomplish that purpose.” While a court “can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes,” wrote Kennedy, “it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that 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.”
The Court rejected the idea that a University would be presumed to be acting in good faith. “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.” Most significantly, the Court said that “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 said that because the lower courts had misconstrued the proper legal standard, it would send the case back for reconsideration. Justice Ginsburg, dissenting, would have affirmed the lower courts, having concluded that they had correctly evaluated the UT admissions practices under Grutter, but no other member of the Court joined her dissent. Justice Scalia, picking up on Kennedy’s statement that the parties had not asked the Court to reconsider Grutter, joined in the result of reversing the 5th Circuit, while noting his opposition to the use of race by the government in making decisions. Justice Thomas wrote a long opinion concurring in the result but arguing with much passion that a public university should not be able to take account of race in making admissions decisions, rejecting the idea that there can be any sort of benign use of race by the government in making decisions. Thomas has consistently been an advocate of “race-blind” government decision-making, so this concurring opinion was totally consistent with his established position.
Where does this leave us on the subject of affirmative action by state universities? The Court does not reaffirm Grutter on the merits, as some instant commentators have suggested. Instead, acting like a Court rather than a political body, it says that it is limited to the question before it presented by the parties, which is whether the UT admissions process is consistent with Grutter. Thus, accepting Grutter for purposes of this decision as settled law, the Court considers whether the 5th Circuit’s method of deciding the case was consistent with Grutter, and decided it was not, because the 5th Circuit failed to apply strict scrutiny to the University’s admissions process, instead deferring to the University. In other words, in some sense this decision gives us nothing new; we are just where we were before it was issued. But the Court has clarified that it is looking for a real searching judicial review that puts the University to the test of showing that only an admissions process that explicitly takes race into account can achieve the level of racial diversity necessary to achieve legitimate educational goals. In that sense, the Court makes it more difficult for a school to justify a race-conscious admissions process than at least some lowers courts and commentators had thought to be required by the prior case law.