Fisher v. University of Texas

570 U.S. _

Case Year: 2013

Case Ruling: 7-1, Vacated and Remanded

Opinion Justice: Kennedy

FACTS

In recent years the University of Texas at Austin has used several different methods of evaluating applications for undergraduate admissions. Before 1997, the University considered high school grades and standardized test scores and, to promote diversity, also considered the race of the applicant. When the racial component was held to violate the Fourteenth Amendment’s Equal Protection Clause by the Fifth Circuit Court of Appeals in 1996, the University substituted a “personal achievement index” (PAI) that took into account factors such as leadership, work experience, awards, extracurricular activities, community service, and other special considerations. The state legislature further modified the process by enacting a law that gave automatic admission to all students in the top 10% of their class in accredited Texas high schools. Because high schools in Texas are often predominantly populated by a single race, the 10% rule contributed significantly to the racial diversity of the University, nearly equaling the effect of the explicit consideration of race that was previously used. In 2004, after the Supreme Court decided Grutter v. Bollinger and Gratz v. Bollinger (2003), the University again changed its admissions policies by explicitly adding race to the list of “plus” factors to be considered as part of an applicant’s PAI score.

In 2008, 29,501 individuals applied for admission to the University. From this group, 12,843 were accepted and 6,717 enrolled. Among the rejected applicants was Abigail Noel Fisher, a Caucasian. Fisher sued the University, arguing that the consideration of race in the admission process violated the Equal Protection Clause. The federal district court granted summary judgment to the University and the Fifth Circuit Court of Appeals affirmed, holding that Grutterrequired the court to give substantial deference to the University both with respect to identifying a compelling interest and determining a narrowly tailored plan to achieve that interest. Fisher successfully petitioned for the Supreme Court to review that decision.

 

JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT:

Among the Court’s cases involving racial classifications in education, there are three decisions that directly address the question of considering racial minority status as a positive or favorable factor in a university’s admissions process, with the goal of achieving the educational benefits of a more diverse student body: [Regents of Univ. of Cal. v.] Bakke, [1978]; Gratz[v. Bollinger, 2003]; and Grutter [v. Bollinger, 2003]. We take those cases as given for purposes of deciding this case.

We begin with the principal opinion authored by Justice Powell in Bakke. . . . Justice Powell’s opinion stated certain basic premises. First, “decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amendment.” The principle of equal protection admits no “artificial line of a ‘two-class theory’ ” that “permits the recognition of special wards entitled to a degree of protection greater than that accorded others.” It is therefore irrelevant that a system of racial preferences in admissions may seem benign. Any racial classification must meet strict scrutiny, for when government decisions “touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.”

Next, Justice Powell identified one compelling interest that could justify the consideration of race: the interest in the educational benefits that flow from a diverse student body. . . .

The attainment of a diverse student body . . . serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes. The academic mission of a university is “a special concern of the First Amendment.” Part of “ ‘the business of a university [is] to provide that atmosphere which is most conducive to speculation, experiment, and creation,’ ” and this in turn leads to the question of “ ‘who may be admitted to study.’ ” Sweezy v. New Hampshire (1957) (Frankfurter, J., concurring in judgment).

Justice Powell’s central point, however, was that this interest in securing diversity’s benefits, although a permissible objective, is complex. “It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Bakke.

In Gratz and Grutter, the Court endorsed the precepts stated by Justice Powell. In Grutter, the Court reaffirmed his conclusion that obtaining the educational benefits of “student body diversity is a compelling state interest that can justify the use of race in university admissions.”

As Gratz and Grutter observed, however, this follows only if a clear precondition is met: The particular admissions process used for this objective is subject to judicial review. Race may not be considered unless the admissions process can withstand strict scrutiny. “Nothing in Justice Powell’s opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis.” Gratz. “To be narrowly tailored, a race-conscious admissions program cannot use a quota system,” Grutter, but instead must “remain flexible enough to 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.” Strict scrutiny requires the university to demonstrate with clarity that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.” Bakke.

While these are the cases that most specifically address the central issue in this case, additional guidance may be found in the Court’s broader equal protection jurisprudence which applies in this context. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people,” Rice v. Cayetano (2000), and therefore “are contrary to our traditions and hence constitutionally suspect,” Bolling v. Sharpe (1954). “ ‘[B]ecause racial characteristics so seldom provide a relevant basis for disparate treatment,’ ” Richmond v. J. A. Croson Co. (1989), “the Equal Protection Clause demands that racial classifications . . . be subjected to the ‘most rigid scrutiny.’ ” Loving v. Virginia (1967).

To implement these canons, judicial review must begin from the position that “any official action that treats a person differently on account of his race or ethnic origin is inherently suspect.” Fullilove (Stewart, J., dissenting); McLaughlin v. Florida (1964). Strict scrutiny is a searching examination, and it is the government that bears the burden to prove “ ‘that the reasons for any [racial] classification [are] clearly identified and unquestionably legitimate,’ ” Croson. . . .

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A university is not permitted to define diversity as “some specified percentage of a particular group merely because of its race or ethnic origin.” Bakke. “That would amount to outright racial balancing, which is patently unconstitutional.” Grutter.“Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’ ” Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007).

Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, 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.”

Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. Bakke. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” strict scrutiny does require a court to examine with care, and not defer to, a university’s “serious, good faith consideration of workable race-neutral alternatives.” Grutter. Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If “ ‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’ ” Wygant v. Jackson Bd. of Ed. (1986), then the university may not consider race. A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But 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.

Rather than perform this searching examination, however, the Court of Appeals held petitioner could challenge only “whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith.” And in considering such a challenge, the court would “presume the University acted in good faith” and place on petitioner the burden of rebutting that presumption. The Court of Appeals held that to “second-guess the merits” of this aspect of the University’s decision was a task it was “ill-equipped to perform” and that it would attempt only to “ensure that [the University’s] decision to adopt a race-conscious admissions policy followed from [a process of] good faith consideration.” The Court of Appeals thus concluded that “the narrow-tailoring inquiry—like the compelling-interest inquiry—is undertaken with a degree of deference to the Universit[y].” Because “the efforts of the University have been studied, serious, and of high purpose,” the Court of Appeals held that the use of race in the admissions program fell within “a constitutionally protected zone of discretion.”

These expressions of the controlling standard are at odds with Grutter’s command that “all racial classifications imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’ ” . . .

Grutter did not hold that good faith would forgive an impermissible consideration of race. It must be remembered that “the mere recitation of a ‘benign’ or legitimate purpose for a racial classification is entitled to little or no weight.” Croson. 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.

The higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other contexts. “[T]he analysis and level of scrutiny applied to determine the validity of [a racial] classification do not vary simply because the objective appears acceptable . . . . While the validity and importance of the objective may affect the outcome of the analysis, the analysis itself does not change.” Mississippi Univ. for Women v. Hogan (1982).

The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications and affirming the grant of summary judgment on that basis. The Court vacates that judgment, but fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis. Unlike Grutter, which was decided after trial, this case arises from cross-motions for summary judgment. In this case, as in similar cases, in determining whether summary judgment in favor of the University would be appropriate, the Court of Appeals must 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. Whether this record—and not “simple . . . assurances of good intention,” Croson—is sufficient is a question for the Court of Appeals in the first instance.

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Strict scrutiny must not be “ ‘strict in theory, but fatal in fact,’ ” Adarand. But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that “encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Bakke, (opinion of Powell, J.). The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

JUSTICE SCALIA, CONCURRING.

I adhere to the view I expressed in Grutter v. Bollinger: “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.”

JUSTICE THOMAS, CONCURRING.

I write separately to explain that I would overrule Grutter v. Bollinger (2003), and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause. . . .

My view of the Constitution is the one advanced by the plaintiffs in Brown [v. Board of Education (1954)]: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” The Constitution does not pander to faddish theories about whether race mixing is in the public interest. The Equal Protection Clause strips States of all authority to use race as a factor in providing education. All applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination.

This principle is neither new nor difficult to understand. In 1868, decades before Plessy [v. Ferguson (1896)], the Iowa Supreme Court held that schools may not discriminate against applicants based on their skin color. . . . This simple, yet fundamental, truth was lost on the Court in Plessy and Grutter.

I would overrule Grutter and hold that the University’s admissions program violates the Equal Protection Clause because the University has not put forward a compelling interest that could possibly justify racial discrimination.

While I find the theory advanced by the University to justify racial discrimination facially inadequate, I also believe that its use of race has little to do with the alleged educational benefits of diversity. I suspect that the University’s program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities. But “[h]istory should teach greater humility.” The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. . . .

A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers. . . .

Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign. . . . The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.

While it does not, for constitutional purposes, matter whether the University’s racial discrimination is benign, I note that racial engineering does in fact have insidious consequences. There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race. But I believe the injury to those admitted under the University’s discriminatory admissions program is even more harmful. . . .

[T]he University’s discrimination “stamp[s] [blacks and Hispanics] with a badge of inferiority.” It taints the accomplishments of all those who are admitted as a result of racial discrimination. And, it taints the accomplishments of all those who are the same race as those admitted as a result of racial discrimination. In this case, for example, most blacks and Hispanics attending the University were admitted without discrimination under the Top Ten Percent plan, but no one can distinguish those students from the ones whose race played a role in their admission. “When blacks [and Hispanics] take positions in the highest places of government, industry, or academia, it is an open question . . . whether their skin color played a part in their advancement.” “The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed ‘otherwise unqualified,’ or it did not, in which case asking the question itself unfairly marks those . . . who would succeed without discrimination.” Although cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping.

For the foregoing reasons, I would overrule Grutter.

JUSTICE GINSBURG, DISSENTING.

The University of Texas at Austin (University) is candid about what it is endeavoring to do: It seeks to achieve student-body diversity through an admissions policy patterned after the Harvard plan referenced as exemplary in Justice Powell’s opinion inRegents of Univ. of Cal. v. Bakke (1978). . . . And, like so many educational institutions across the Nation, the University has taken care to follow the model approved by the Court in Grutter v. Bollinger (2003). . . .

Petitioner urges that Texas’ Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. . . .

Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage. See House Research Organization, Bill Analysis, HB 588, pp. 4–5 (Apr. 15, 1997) (“Many regions of the state, school districts, and high schools in Texas are still predominantly composed of people from a single racial or ethnic group. Because of the persistence of this segregation, admitting the top 10 percent of all high schools would provide a diverse population and ensure that a large, well qualified pool of minority students was admitted to Texas universities.”). It is race consciousness, not blindness to race, that drives such plans. As for holistic review, if universities cannot explicitly include race as a factor, many may “resort to camouflage” to “maintain their minority enrollment.”

I have several times explained why 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.” Among constitutionally permissible options, I remain convinced, “those that candidly disclose their consideration of race [are] preferable to those that conceal it.” . . .

The Court rightly declines to cast off the equal protection framework settled in Grutter. Yet it stops short of reaching the conclusion that framework warrants. . . .

For the reasons stated, I would affirm the judgment of the Court of Appeals.