Does the University of Texas at Austin’s use of racial preferences in its admissions process violate the Equal Protection Clause of the Fourteenth Amendment?
In this case, the Supreme Court will consider whether the University of Texas at Austin (“UT”)’s admissions policy, which considers race, is constitutional under the Equal Protection Clause of the Fourteenth Amendment. Abigail Fisher applied to UT for admission to its 2008 freshman class. As part of its admission process, UT computes and considers Personal Achievement Index (“PAI”) Scores, which include various personal characteristics of applicants, including their race. UT does not assign a numerical score or value to the elements of an applicant’s PAI. Ultimately, UT denied Fisher admission based on her PAI scores, and Fisher would not have received a seat in the 2008 class, even with a perfect PAI score, regardless of race. In Fisher I, Fisher alleged that UT’s admission policy violated the Fourteenth Amendment. The Supreme Court ultimately remanded that case to the Court of Appeals for the Fifth Circuit, so the appeals court could consider whether UT’s admission policy survives strict scrutiny under Grutter v. Bollinger, 123 S. Ct. 2325 (2003). The Fifth Circuit held that the policy did survive strict scrutiny. On appeal to the Supreme Court, Fisher argues that UT’s pursuit of intra-racial diversity is not a clearly articulated compelling government interest, and its admissions scheme is not narrowly tailored to achieving that interest. UT argues that the Court has already held that a university’s interest in diversity is compelling, and that UT’s admissions policy is narrowly tailored, because race-neutral approaches are insufficient to achieve its interest. The outcome of this case will affect the admissions schemes and racial demographics of universities.
Questions as Framed for the Court by the Parties
Can the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin?
Abigail Fisher applied to the University of Texas at Austin (“UT”) for admission to its fall 2008 class. UT’s admissions scheme included three paths for accepting applicants. First, UT admitted applicants through its Top Ten Percent Plan, in which UT admits any Texas students that graduate in the top ten percent of their high school class. Second, UT admitted applicants with “exceptionally high Academic Index (“AI”) score[s],” which were calculated using standardized test scores, class rank, and high school work. Finally, students not admitted under those two programs were considered in UT’s holistic review process, which evaluated applicants’ AI scores and Personal Achievement Index (“PAI”) scores. UT calculated PAI scores by combining the “weighted average score” of the applicant’s admissions essays, with a personal achievement score based on a review of the student’s application. UT determined the personal achievement score by evaluating the applicant’s entire file, which included the applicant’s extracurricular activities, leadership experience, community service, honors, work experience, socioeconomic status, and race. UT does not assign a numerical score or value to the elements of an applicant’s PAI. Ultimately, UT denied Fisher admission; her PAI scores “were too low . . . [for] her preferred academic programs.” Fisher would not have received a seat in the 2008 class with a perfect PAI score, regardless of race.
Subsequently, Fisher filed suit for injunctive relief and damages in the District Court for the Western District of Texas, alleging that UT’s use of racial preferences in its admissions process violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. UT defended its use of race as a “narrowly tailored means of pursuing” its compelling interest in “racial diversity.” UT argued that it had not attained a “critical mass” (i.e., a meaningful amount) of underrepresented minorities, particularly African Americans and Hispanics.
The district court granted UT’s motion for summary judgment.The Court of Appeals for the Fifth Circuit affirmed. The appeals court recognized that a university’s using race as a differentiating factor in its admission program is normally given strict scrutiny. However, the court reasoned that “a university’s educational judgment in developing diversity policies is due deference.” Accordingly, the appeals court applied a deferential standard, which limited its review to whether UT’s “decision to reintroduce race as a factor in admissions was made in good faith.” The Fifth Circuit deferred to UT’s good-faith determination that it lacked a critical mass of minorities.
The Supreme Court vacated and remanded the Fifth Circuit’s decision, instructing the appeals court to use strict scrutiny to determine whether summary judgment for UT was appropriate. The Court advised the Fifth Circuit to determine whether UT used a narrowly tailored means of achieving diversity.
On remand, the Fifth Circuit affirmed its grant of summary judgment to UT. The Fifth Circuit held that UT’s consideration of race in its admissions process was narrowly tailored to achieving its compelling interest of cultivating a diverse student body. The Fifth Circuit denied rehearing en banc, and the Supreme Court granted certiorari.
In Grutter v. Bollinger, 123 S. Ct. 2325 (2003), the Supreme Court held that university admissions policies that use racial classifications must satisfy strict scrutiny under the Fourteenth Amendment. To satisfy strict scrutiny, universities must show that the classifications are a narrowly tailored means of furthering a compelling interest. In Fisher v. University of Texas at Austin, 133 S. Ct. 2411, 2421 (2013) (“Fisher I”), the Court remanded Fisher I to the Fifth Circuit to apply the strict scrutiny standard; the Fifth Circuit affirmed its grant of summary judgment to UT in Fisher I. ,
Fisher argues that UT has not clearly articulated a compelling interest, and that UT’s proposal is not narrowly tailored to achieve its purported goal of intra-racial diversity. UT counters that its compelling interest is the educational benefits of a diverse student body, and that its holistic approach is narrowly tailored to achieving that goal.
SPECIFIC AND COMPELLING INTEREST
HAS UT CLEARLY ARTICULATED ITS COMPELLING INTEREST?
Fisher argues that UT failed to demonstrate that its use of race in the admissions process addressed clearly defined interests. Fisher claims that, to satisfy the Equal Protection Clause, the Court requires universities to “demonstrate with clarity that [their] purpose or interest is both constitutionally permissible and substantial, and that [their] use of the classification is necessary . . . to the accomplishment of [their] purpose.” According to Fisher, UT’s proposed interests—(1) alignment of the university’s racial demographics with Texas’; and (2) achieving “classroom diversity”—do not clearly explain what UT’s goal is, or how and when UT will meet its goal. Accordingly, Fisher argues that the Court cannot give UT’s admissions policy “meaningful review,” and thus the policy must be struck down. Fisher asserts that UT, for the first time on appeal, suggests that its interest is “intra-racial diversity.” But Fisher contends that UT did not identify the characteristics it is targeting to achieve this interest or explain why the Top Ten Percent program was insufficient to achieve the desired demographic results. Fisher suggests that UT’s shifting justifications indicate that its use of race was illegitimate and motivated by “notions of racial inferiority or simple racial politics.”
But UT contends that it has clearly and consistently stated its compelling interest. Rather than seek demographic parity or classroom diversity, UT contends that its policies sought to achieve the educational benefits of diversity, which the Court recognized as a legitimate compelling interest in Grutter. UT disagrees with Fisher’s assessment that it has altered its proposal to combat litigation. UT argues that Fisher has attempted to twist UT’s motivations by describing its goals as “racial balancing” in Fisher I and as an interest in “intra-racial diversity” in this litigation. UT contends that its policies provide a holistic view of students and attempt to counterbalance segregation by admitting minority students who come from a variety of backgrounds and experiences.
IS UT’S ADMISSIONS POLICY NARROWLY TAILORED?
Fisher argues that intra-racial diversity is not narrowly tailored to achieve a compelling government interest. According to Fisher, UT’s proposal relies on overbroad generalizations and racial stereotypes that are not supported by evidence. For example, Fisher argues, the Fifth Circuit blindly accepted UT’s assumption that minority students admitted through the Top Ten Percent program fail to satisfy UT’s diversity interest, because those students typically come from economically disadvantaged communities or school districts in which a majority of students are from minorities. Fisher contends that UT believes minority students from predominately white, affluent schools offer “distinct ways” to enrich diversity. But Fisher contends that UT does not even attempt to demonstrate that minorities admitted through the Top Ten Percent program lack the diverse characteristics that it seeks. And Fisher argues that UT’s attempts to admit more affluent minorities runs contrary to the traditional goal of race-conscious admissions, which Fisher sees as providing opportunities “to minority students with limited access to education resources.” As such, Fisher concludes that UT’s using racial classifications does not create diversity, but rather creates a student body “with wealthy minority students [who] have the same experiences and viewpoints as the majority of UT’s freshman class.”
Fisher contends that UT has failed to demonstrate that race-neutral alternatives will not succeed in achieving its goals of increasing the number of minorities from affluent communities enrolled in the university. Specifically, Fisher argues that UT failed to examine whether the Top Ten Percent program was sufficient to achieve the desired diversity. If the Top Ten Percent program was determined to be insufficient, Fisher claims that UT could have relied on other race-neutral alternatives to meet its goals, such as removing socioeconomic status from PAI calculation.
UT asserts that Fisher’s attempt to exclude the consideration of race as a factor in admissions is inconsistent with the Court’s decisions. UT disagrees with Fisher’s contention that it is attempting to increase enrollment for affluent minorities. Instead, UT contends that it uses a holistic review to attract minorities from a variety of backgrounds, and that it encourages admission of students who have overcome economic adversity. UT argues that, under Grutter and Bakke, it is permitted to consider race as part of a holistic review process, because the university made a good-faith effort to use race-neutral alternatives. When those alternatives proved insufficient, UT developed a proposal to allow for “modest and individualized” consideration of race.
UT argues that it considered many race-neutral alternatives, including using socioeconomic status as a proxy for race, before adopting its current proposal in 2004. Despite UT’s efforts to enroll minority students using these race-neutral alternatives, UT saw a reduction in underrepresented minorities under its policy of race-blind holistic reviews. In particular, African-American enrollments were significantly underrepresented during the period leading up to 2004, and UT determined that race-neutral alternatives were insufficient to achieve a diverse student body. Contrary to Fisher’s suggestion, UT asserts that it did not reach a “critical mass” of minority students by 2003, considering that in 2004, African-American students were only 4.5 percent of UT’s freshman class. Fisher suggests that the Top Ten Percent Plan was sufficient to achieve UT’s goals, but UT claims the Court found in Grutter that percentage plans do not provide a workable alternative to holistic review of individual students. UT asserts that Fisher cannot and does not suggest that the Ten Percent Plan completely solves UT’s diversity problems. UT argues that “no selective university in America” chooses its entire student body “based solely on class rank . . . because such a one-dimensional method . . . sacrifices . . . diversity in the broad sense recognized by this Court.”
ARTICLE III STANDING
UT argues that Fisher lacks standing to sue for relief under Article III of the U.S. Constitution. But Fisher argues that the Court rejected UT’s standing arguments in Fisher I, and thus does not need to address the arguments again. Moreover, Fisher contends that her claim for $100 in restitution is permissible, because it is based on the denial of an opportunity to have her application equally considered.
But UT argues that Fisher is unable to establish “injury in fact,” an Article III requirement, because Fisher would not have been admitted to the class of 2008, regardless of race, considering her AI and PAI scores. Even if Fisher could demonstrate that she suffered injury as a result of UT’s policy, UT contends that her requested relief—declaratory and injunctive relief and repayment of her application fees—will not redress her injury. UT explains that Fisher already completed her degree at another university.
The Court’s decision may affect the demographics of universities and how universities consider race in admissions. Fisher argues that UT’s interest in increasing racial diversity is not a clearly articulated compelling government interest, and that its admissions scheme is not narrowly tailored because a race-neutral approach can satisfy UT’s interest in diversity. UT argues that the Court has already held that a university’s interest in diversity is compelling, and UT’s admissions scheme is narrowly tailored because race-neutral approaches are insufficient to achieve its diversity interest.
DISCRIMINATORY EFFECT OF RACIAL-PREFERENCE ADMISSIONS SCHEMES
Some amici supporting Fisher argue that racial preferences, even if they are considered in a “holistic” manner, can still discriminate against minorities. The Cato Institute asserts that some schools, under the guise of holistic review, “pool” applicants by personal characteristics, such as race; applicants “‘who are non-white U.S. citizens’ receive special preference” but other applicants must compete for a limited number of seats. The Cato Institute contends that this process marginalizes other applicants, such as “low-income students.” Similarly, the Asian American Legal Foundation, Asian American Coalition for Education, and 117 affiliated Asian-American organizations (collectively, “AALF”) argue that UT’s racial-preference admissions scheme discriminates against Asian Americans. AALF explains that non-top ten percent Asian-American admitted students have higher GPAs and SAT scores than white admitted students. AALF notes that while the Fifth Circuit found that Hispanics were insufficiently represented at UT, more Hispanics attend UT than Asian Americans. AALF suggests that UT’s true goal in considering race is not creating a diverse student body; rather, its goal is to match the demographics of UT to the demographics of Texas.
In support of UT, the American Jewish Committee, Union for Reform Judaism, and amici (collectively “the Committee”), argue that there is no evidence that UT used its admissions scheme to limit or prevent admission of any racial group. The Committee acknowledges that “some amici argue . . . UT’s race-conscious admission policy” discriminates against Asian Americans in a manner similar to discrimination against Jewish students in the 1920s. But the Committee argues that UT did not award points to students from any particular racial group, and did not seek any specific percentage of minority enrollment. In fact, the Committee notes that 80 percent of UT’s class “is admitted on class rank alone.” The Asian American Legal Defense and Education Fund and supporting amici acknowledge “longstanding racial discrimination against Asian Americans,” but contend that Asian Americans have varied socio-economic backgrounds that are given due weight in UT’s holistic approach.
THE EFFECT OF GAPS IN ENTERING ACADEMIC CREDENTIALS
Members of the United States Commission on Civil Rights (“USCCR”) assert that race-preferential admissions lead universities to admit minority students whose academic credentials “put them toward the bottom of the class.” In turn, USCCR contends that gaps emerge between these minority students and their peers, because students tend to perform at the academic level “that their entering credentials suggest.” USCCR contends that these gaps disadvantage minority students. For example, USCCR asserts that “college-bound African-American and Hispanic students are” interested in science and engineering just as much as white students. However, minority students, whose entering academic credentials put them toward the bottom of the class, are more likely stop majoring in these subjects than whites.USCCR concludes that minority students whose entering credentials put them “in the middle or the top” of their class are “more likely to preserve and succeed.” USCCR also contends that racial-preference beneficiaries are less likely to seek a graduate degree and become college professors than underrepresented minorities who attend universities where their entering academic credentials match the median student at their school. [O1]
However, the American Educational Research Association (“AERA”), in support of UT, contends that there is little research supporting the claim that entering academic credential gaps harm minority students. AERA notes that more recent and better-designed research contradicts the purported problems of mismatch. For example, AERA cites “a national study focusing on minority students who entered selective public institutions in 1999,” which found that black male students graduated at higher rates “than black students in the same GPA interval who went to less selective institutions.” AERA also cites a Texas-specific study, which found that minority students who were purportedly mismatched based on their credentials had higher graduation rates than students at “better matched” schools. AERA concludes that minority students benefit educationally and economically when they attend selective universities.
ECONOMIC INEQUALITY AND SOCIOECONOMIC DIVERSITY
Richard Kahlenberg, in support of neither party, argues that colleges are ignoring socioeconomic diversity in their pursuit of racial diversity. Kahlenberg explains that, in a study of elite universities, being an underrepresented minority increased an applicant’s admission chances by 27.7 percent, while being in the bottom income quartile had no beneficial impact. By ignoring socio-economic background, Kahlenberg argues that universities are missing out on “a richer, more nuanced emphasis on socioeconomic alongside racial diversity.” Kahlenberg contends that race-neutral admissions schemes that account for socioeconomic diversity still create racial diversity, “because economic disadvantage is often shaped by racial discrimination.”
AERA concedes that “encouraging the admission of students from lower economic classes may itself be a desirable end.” But AERA argues that race-neutral admissions schemes that focus on socio-economic status are not as effective as race-conscious admissions schemes at increasing racial diversity. In fact, AERA argues that socio-economic admissions may reduce the number of minority students admitted. AERA cites a recent study finding the presence of minorities among low-income students would be insufficient to create a level of minority representation close to its current level.
The Supreme Court will decide whether UT’s use of racial preferences is constitutional under the Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment. Fisher argues that UT has failed to clearly articulate a compelling interest and that UT’s proposal is not narrowly tailored to achieve its purported goal of intra-racial diversity. UT counters that its interest in the benefits of racial diversity is the same interest that the Court found compelling in Grutter , and that its reliance on holistic review of individual students is narrowly tailored. The Court’s ruling may affect the admissions procedures and racial demographics of universities.
- Daniel Fisher, Supreme Court Takes Up Texas Affirmative-Action Case for Second Time, Forbes (June 29, 2015).
- Adam Liptak, Supreme Court to Weigh Race in College Admissions, N.Y. Times (June 29, 2015).
- Valerie Strauss, Is a Supreme Court Surprise Coming on Affirmative Action in College Admissions?, The Washington Post (Sept. 9, 2015).