“The Fate Of Race-Conscious Admissions Policies … Delayed”

By:  Natasha Baker
Hirschfeld Kraemer LLP
San Francisco, CA

The following article appeared on Law360 on 6-26-13 and is reprinted with permission.

Those awaiting a definitive decision on the University of Texas at Austin’s admissions plan — in which race is one of many factors used to evaluate a certain pool of applicants for admission — will have to wait for the Fifth Circuit Court of Appeals to review the plan again, this time in accordance with the long-awaited Fisher v. University of Texas at Austin decision handed down by the U.S. Supreme Court during the last week of the 2012-2013 term.

In a 7-1 decision, the court vacated the decision of the Fifth Circuit Court of Appeals, which had upheld the university’s consideration of race as one of many factors when evaluating applicants for admission. (Justice Anthony Kennedy delivered the opinion of the court, Justice Ruth Bader Ginsburg dissented and Justice Elena Kagan recused herself.) A majority of the court found that the Fifth Circuit did not appropriately apply the required strict standard of scrutiny when reviewing the university’s plan.

Under the plan, students were admitted under a top 10 percent rule — those in the top 10 percent of their graduating class received automatic admission. The university reserved a small percentage of seats for those who did not qualify for admission under the top 10 percent rule.

Within this discretionary pool, the university evaluated candidates for admissions holistically — race being one factor taken into consideration. This use of race as a factor in admission led the petitioner, Abigail Fisher, to challenge the university’s admissions plan as unconstitutional under the Equal Protection Clause of the 14th Amendment to the Constitution, which prohibits a government actor from employing racial classifications unless certain conditions have been satisfied.

Reviewing the landmark admissions decisions in this area — Regents of the University of California v. Baake and “Michigan cases” Gratz v. Bollinger and Grutter v. Bollinger — the court reiterated its long-standing precedent, which requires that when racial classifications are used, they are constitutional only if they meet the test for strict scrutiny — which requires a showing of (1) a compelling state interest (in this case, diversity as an educational goal) and (2) that the use of such racial classifications is narrowly tailored to achieve the compelling state interest.

According to the majority opinion, the Fifth Circuit erred when it held that the petitioner, Fisher, could only challenge whether the university’s decision to use race as an admissions factor “was made in good faith.” According to the Supreme Court, the university had been given too much deference as to whether its plan was “narrowly tailored to achieve its stated goal” in achieving a more diverse student body. As such, the Fifth Circuit must review the case again under the strict scrutiny standard without according the university such deference.

With this narrowly drawn ruling (resulting in an outcome that will ultimately turn on the facts before the Fifth Circuit), the Supreme Court sidestepped the issue of whether diversity as an educational goal remains a sufficient justification for considering race as a factor in admissions, thereby leaving undisturbed its 2003 ruling in Grutter.

However, in concurring opinions, Justices Clarence Thomas and Antonin Scalia signaled that they do not consider the educational benefits of diversity to be a compelling state interest that justifies the use of race in evaluating candidates for admission. They would likely overturn Grutter — an opportunity that may present itself in the 2013-2014 term. Prior to issuing its decision in Fisher, the court granted review of the Sixth Circuit Court of Appeals’ decision in Schuette v. Coalition to Defend Affirmative Action. The court will be reviewing that case during its 2013-2014 term.

In Schuette, the Sixth Circuit struck down a Michigan ballot measure which, among other things, prohibited public universities in Michigan from considering race (or any other protected factors) when evaluating candidates for admission. The measure had been passed in response to the Supreme Court’s 2003 decision in Grutter.

Thus, those who had hoped for answers from the court in Fisher must wait another year. Reading the tea leaves, it appears that the court has positioned itself to be able to answer this question in Schuette.

The author and her firm participated in the preparation of an amicus brief that was filed with the court in this case on behalf of the Former Student Body Presidents of University of Texas at Austin.

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