The Fisher decision offers few answers to questions surrounding Affirmative Action

Photo by: James Clayton

On the morning of June 24, 2013, the Supreme Court of the United States was set to announce its decision in Fisher v. University of Texas at Austin.  Many Americans believed the opinion would be landmark, a definitive ruling on the long-debated issue of affirmative action in college admissions policies.  The Court, instead, announced what arguably could be described as a non-decision (pdf).

No definition was provided for “critical mass” and other affirmative action buzzwords.  No hard and fast ruling was made concerning the constitutionality of affirmative action in college admissions policies or otherwise.  No final decision was given regarding the constitutionality of the University of Texas’s admissions policy, the very policy at issue in the case.  The country’s highest court remanded the case to the U.S. Court of Appeals for the Fifth Circuit, stating that the lower court did not previously hold the policy to the required standard of strict scrutiny.  In effect, the Court left the decision to someone else.

The admissions policy at issue in Fisher is the University’s third in recent history. 

The University of Texas is no stranger to race-based admissions policy controversy.  In fact, the policy at issue in Fisher is the university’s third such policy in recent history.  Prior to 1996, the University analyzed students based on their Academic Index (AI), which included academic performance and test scores, and their race.  This, however, was struck by the Fifth Circuit in Hopwood v. State of Texas with the court holding that the use of race violated the Equal Protection demanded by the Fourteenth Amendment because it furthered no compelling governmental interest.

After Hopwood, the University eliminated race from its admissions practices but added a Personal Achievement Index (PAI).  The PAI (pdf) is a combination of students’ scores on two assigned essays and “special circumstances,” such as languages spoken in the home, whether the student’s household is single- or two-parent, and the socio-economic status of the student’s family.  The PAI score and AI score are each placed on a grid, which is then used to determine the applicant’s admissibility.  In 1998, the state of Texas enacted the Top 10% Law, which requires automatic admission of any student graduating from a Texas public high school in the top ten percent of her class to any Texas university.  After 1998, any student not admitted to the University under the Top 10% Law was evaluated using the combined PAI and AI.

In 2003, however, the Supreme Court of the United States opened the door for the University of Texas to once again use race as a factor in its admissions practice.  The Court’s decision in Grutter v. Bollinger affirmed that a diverse student body was a compelling government interest to justify the use of race as a single factor among a holistic review of each application in college admissions processes.  Quotas were forbidden, but a university could work to achieve a “critical mass” of minority students in its student body population.

As a result of Grutter, the University revamped its admissions policy to include race as part of its criteria.  After conducting a survey of its students, focusing particularly on small classes, the University determined that it lacked a critical mass of minority students in the student population as a whole and within individual classrooms.  With the goal of remedying this and providing “superior and comprehensive educational opportunities” by selecting a diverse population to enhance its students’ educational experiences, the school added race (pdf) as a “special circumstance” on the PAI to be considered for each student not admitted under the Top 10% Law.

When Abigail Fisher applied for admission to UT-Austin in 2008, she did not qualify under the Top 10% Law.  As a result, her application was evaluated using the combined AI and PAI scores, which included race.  After being denied admission, Fisher sued the University, stating that its policy was unconstitutional and violated the Equal Protection Clause.

Even benign racial classifications must meet the stringent standard of Strict Scrutiny.

Although the University’s use of race in its admissions policy is meant to benefit minority applicants, the law requires even benign racial classifications to be subject to strict scrutiny because race is considered an inherently suspect class.  Strict scrutiny involves two prongs, both of which must be satisfied: (1) the government actor must have a compelling purpose to justify its classification; and (2) the means used must be narrowly tailored to that compelling purpose.  In the context of college admissions, the Court in Regents of the University of California v. Bakke held creating a diverse student body to enhance educational experiences to be a compelling interest, satisfying the first prong.  The Bakke Court deemed the Medical School’s admissions policy unconstitutional, however, because it involved numerical set-asides or quotas, which were not narrowly tailored and failed the second prong of strict scrutiny.

The diversification of a student body was affirmed as a compelling interest in the afore-mentioned 2003 Grutter decision.  Recognizing the university setting as a “special niche,” the Court granted deference to officials at the University of Michigan Law School in making academic decisions.  The deference granted was not absolute, however, as the Grutter court upheld the policy only because it involved “soft variables,” not just minority status, to determine the diversity an applicant would bring to the Law School’s student body.  These soft variables were considered narrowly tailored, passing the second prong of strict scrutiny, because they focused on race as a “plus” factor, not as the sole basis for determining diversity.  Unlike the Medical School’s quota-based policy in Bakke, the Court upheld the policy in Grutter because the school sought to enroll a critical mass, a level of diversity that would prevent “underrepresented minorities” from feeling “isolated or like spokespersons for their race.”

Finally, the Law School’s policy was acceptable because it was not indefinite: the school indicated a desire to end the use of race as soon as it found an effective race-neutral alternative.  The compelling interest of creating a diverse student body, combined with the holistic applicant review, critical mass, and time restriction allowed the Law School’s policy to survive strict scrutiny.  It is this Grutter model that the University of Texas attempted to follow and this analysis under which its admissions policy should have been analyzed.

Meeting the second prong of Strict Scrutiny is where the University likely will face trouble.

According to the Supreme Court, the analysis of the school’s policy is where the lower courts erred.  Justice Kennedy’s opinion explains that the Court of Appeals did not adhere to the strict scrutiny analysis required by Bakke and Grutter; the lower court, instead, “confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications.”  Although the Court has previously granted deference to universities in making admissions decisions, the Court felt in this case that the lower court granted too much deference to the University of Texas.

On remand, the Court of Appeals must determine whether the University has met its burden of proving that its policy is narrowly tailored to the compelling interest of a diverse educational environment.  To do this, the University must present evidence that no valid race-neutral alternative exists that would achieve the same success as its race-based policy.

Meeting the second prong of strict scrutiny is where the University will likely face trouble.  The policy at the University goes further in its use of race than the policy upheld in Grutter.  With its use of race, the policy attempts to create a diverse student body, individual classroom diversity, and a university population that reflects the overall population of the state.  What both Bakke and Grutter grant is a compelling interest in a diverse university to satisfy the first prong of strict scrutiny. What neither mentions, however, is extending this interest to individual classroom settings.

Further, the Court held in Parents Involved that attempts at racial balancing are not narrowly tailored means of achieving educational diversity; these efforts to mirror racial demographics create unconstitutional racial balancing and are not narrowly tailored to the compelling purpose.  Despite its use of the term “critical mass” to suggest a narrowly tailored, constitutionally acceptable plan, the attempt to mirror state-wide racial demographics and to achieve individual classroom diversity seems to suggest a more specific numerical goal in mind (pdf).

Another issue for the University may be the effectiveness of its current admissions policy.  In Parents Involved, the Court held that a marginally effective use of racial classification, particularly in the face of race-neutral alternatives, was not narrowly tailored to satisfy strict scrutiny.  In 2004, when race was not a factor in the PAI, 15.2% of the non-Top 10% students admitted were Hispanic or African American.  In 2008, when race was added as a factor, 17.9% of the non-Top 10% students were part of these minority groups. The Court of Appeals will be left to decide if a 2.7% increase is enough to surpass the “marginally effective” level and be deemed narrowly tailored.

Finally, and perhaps most fatal to the University, is the existence of the Top 10% Law, a valid, race-neutral admissions standard.  Under the law, the school’s diversity on campus has increased, and its minority students are performing more successfully, indicating that the University has not had to make academic compromises in order to achieve racial and cultural diversity.  In fact, the University publicly lauded the Top 10% Law, saying that it allowed the University “to create a more representative student body and enroll students who perform well academically.”

This law, of course, applies to only some of the University’s accepted applicants.  What applies to all applicants, however, is the use of race.  Because the University requires students to apply to the University and to separate majors, all students’ race is used at some point in applying to the University of Texas.  Because it is using race, even for those students admitted under a race-neutral state law, the University may find it difficult to prove that their admissions policy is narrowly tailored to achieve what is a compelling purpose.

“Strict scrutiny must not be ‘strict in theory, but fatal in fact’ [or] strict in theory but feeble in fact.”

The decision in Fisher did confirm that race-based preferences are acceptable means of achieving a university’s compelling interest in creating a diverse student body.  But that interest must be furthered by narrowly tailored means.  In his subtle criticism of the lower court’s failure to apply strict scrutiny correctly, Justice Kennedy stated, “Strict scrutiny must not be ‘strict in theory, but fatal in fact’ . . . [or] strict in theory but feeble in fact.”  For its admissions policy to satisfy strict constitutional analysis, the University of Texas must present strong and specific evidence that race-neutral alternatives either do not exist or are ineffective.  While the Court allows deference to universities in creating educational environments, this deference still requires schools to fall within constitutional boundaries.

Harper Gwatney, Former Associate Editor/Ethics
About Harper Gwatney, Former Associate Editor/Ethics (9 Articles)
Harper Gwatney, originally from Goldsboro, North Carolina, served as an Associate Editor for the Campbell Law Observer during the 2013-2014 academic year. She was also a member of the school's Mock Trial Team and an Associate Chair of the Old Kivett Advocacy Council. Prior to law school, Harper received a Bachelor's degree in English from UNC-Chapel Hill and a Master's in the Art of Teaching from East Carolina University. Harper then taught Honors and IB English at Myers Park High School in Charlotte, North Carolina. Prior to her graduation from Campbell Law School in May 2014, Harper worked with Walker Allen Grice Ammons & Foy; Superior Court Judge Paul C. Ridgeway; the firm of Stewart Schmidlin Bullock and Gupta; and the Wake County District Attorney's Office.
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