RACE-CONSCIOUS ADMISSIONS POLICIES IN HIGHER EDUCATION: FISHER V. UNIVERSITY OF TEXAS AT AUSTIN

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1 RACE-CONSCIOUS ADMISSIONS POLICIES IN HIGHER EDUCATION: FISHER V. UNIVERSITY OF TEXAS AT AUSTIN The Equal Protection Clause of the Fourteenth Amendment guarantees all citizens equal protection of the laws. 1 Racial discrimination, as it relates to admission into a public school, is prohibited by the Constitution because it violates the Equal Protection Clause. 2 At the heart of this [guarantee] lies the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups. 3 Specifically to the issue in this case, decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amendment. 4 Moreover, [a]ny 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. 5 In Fisher v. University of Texas at Austin, the Supreme Court of the United States decided if the University s use of race in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. 6 The Court essentially reaffirmed the principles established in the landmark decision of Grutter v. Bollinger. 7 Specifically, the Court held that the Fifth Circuit failed to apply the correct standard of review, so the case must be remanded 1. U.S. CONST. amend XIV. 2. Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2422 (2013) (Thomas, J., concurring). 3. Id. (quoting Missouri v. Jenkins, 515 U.S. 70, (1995)). 4. Id. at 2417 (quoting Regents Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978)). 5. Id. (quoting Bakke, 438 U.S. at 299). 6. Id. at U.S. 306 (2003).

2 2 THOMAS M. COOLEY LAW REVIEW [2013 and the decision vacated. 8 By remanding the case, the Court chose not to address whether the decision in Grutter was still constitutionally permissible, but it affirmed those principles by forcing the lower court to apply strict scrutiny. 9 In the fall of 2008, Abigail Fisher and Rachel Michalewicz (collectively Plaintiffs ) applied to the University of Texas at Austin (University) but both were rejected. 10 Rejection from the University was not a new phenomenon; the admission numbers for the fall class of 2008 indicated that four times the number of applications were received than could actually be admitted to the University. 11 It is important to note that, as residents of Texas, Plaintiffs were allotted 90% of all available seats and were automatically placed in a different admissions pool. 12 The University describes its admissions goal as enrolling a meritorious and diverse student body with the expectation that many of its graduates will become state and national leaders. 13 Specifically, the admissions process at issue in this case considers race as part of a complex process. 14 The most recent change was the result of a study conducted in November of 2003, and the decision handed down in Grutter. 15 Students who do not qualify for the top ten percent admissions pool, like Plaintiffs in this case, are subsequently selected for admission based on their Academic and Personal Achievement Indices ( AI and PAI, respectively). 16 The AI is a mechanical formula designed to calculate the freshmen s projected 8. Fisher, 133 S. Ct. at See id. 10. Fisher v. Univ. of Tex. at Austin, 645 F. Supp. 2d 587, 590 (W.D. Tex. 2009). 11. Fisher, 133 S. Ct. at 2415 (indicating that there were 6,715 students enrolled; 12,843 students were admitted; and 29,501 students applied). 12. Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 227 (5th Cir. 2011). 13. Fisher, 645 F. Supp. 2d at Fisher, 631 F.3d at Fisher, 645 F. Supp. 2d at Fisher, 631 F.3d at 227.

3 2013] FISHER V. UNIVERSITY OF TEXAS AT AUSTIN 3 GPA by taking into account things such as standardized test scores, high school GPA, and high school class rank. 17 Meanwhile the PAI accounts for the remaining criteria and includes a special circumstances element that may reflect things like socioeconomic status or race this is the holistic approach adopted after Grutter. 18 No one factor is given numerical values or considered on an individual basis as being more important. 19 On April 7, 2008, Plaintiff Abigail Fisher sued, contending that the admissions policies and procedures currently applied by Defendants 20 discriminate against Plaintiffs on the basis of their race in violation of their right to equal protection of the laws under the Fourteenth Amendment. 21 The District Court for the Western District of Texas granted summary judgment in favor of the University; it held that the University s admissions policies were constitutional because they were narrowly tailored to achieve a compelling government interest. 22 The Fifth Circuit affirmed the District Court s grant of summary judgment. 23 The court held that the University did not breach its obligation to undertake a serious, good faith consideration before 17. See, e.g., Fisher, 645 F. Supp. 2d at 596; Fisher, 631 F.3d at See, e.g., Fisher, 645 F. Supp. 2d at ; Fisher, 631 F.3d at See, e.g., Fisher, 645 F. Supp. 2d at 597; Fisher, 631 F.3d at There were numerous Defendants in this case: the state of Texas; the University of Texas at Austin; Mark G. Yudof, Chancellor of the University of Texas System in his official capacity; David B. Pryor, Executive Vice Chancellor for Academic Affairs in his official capacity; Barry D. Burgdorf, Vice Chancellor and General Counsel in his official capacity; William Powers, Jr., President of the University of Texas at Austin in his official capacity; the Board of Regents of the Texas State University System; John W. Barnhill, Jr., H. Scott Caven, Jr., James R. Huffines, Janiece Longoria, Colleen McHugh, Robert B. Rowling, James D. Dannenbaum, Paul Foster, and Printice L. Gary, as Members of the Board of Regents in their official capacities; and Bruce Walker, Vice Provost and Director of Undergraduate Admissions in his official capacity (collectively Defendants ). 21. Fisher, 645 F. Supp. 2d at Id. at Fisher, 631 F.3d at 247.

4 4 THOMAS M. COOLEY LAW REVIEW [2013 restoring to race-conscious measures as required by Grutter. 24 The court gave substantial deference to the University as to what is considered a compelling interest and whether the policy is narrowly tailored. 25 The Supreme Court vacated and remanded the Fifth Circuit s decision because it did not properly apply the burden of strict scrutiny articulated in Grutter 26 and Regents of University of California v. Bakke. 27 The Court reasoned that both the Fifth Circuit and District Court did not apply strict scrutiny properly because, in deferring to the University s good faith, the courts did not conduct a searching examination. 28 Plaintiffs put forth three arguments that the admissions policy was unconstitutional. First, the University has attempted to achieve racial balancing, which goes beyond mere diversity for educational purposes. 29 Second, the University did not give adequate consideration to available race-neutral alternatives. 30 Finally, Plaintiffs argued that the University had already exceeded its critical mass to the extent that continuing race-conscious measures were no longer justified Id. at Id. at 231 (indicating that judicial deference was given to the university s academic decisions because admission decisions are the product of complex educational judgments in an area that lies primarily within the expertise of the university and universities have occupied a special niche in constitutional tradition) U.S. 306, 326 (2003) (arguing that strict scrutiny applies to all racial classifications in efforts to smoke out any and all unlawful uses of race) U.S. 265, 329 (1978) (stating that the Supreme Court has unquestionably held that a government practice or statute which restricts fundamental rights or which contains suspect classifications is to be subjected to strict scrutiny and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available ). 28. Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420 (2013). 29. Fisher, 631 F.3d at Id. 31. Id.

5 2013] FISHER V. UNIVERSITY OF TEXAS AT AUSTIN 5 The Supreme Court handled all of these issues when discussing whether the correct level of scrutiny was applied by the lower courts. The Court briefly discussed all of the cases that addressed raceconscious school policies to build a foundation for its holding. 32 In Bakke, the specific number of seats set aside for minority students at the University of California was struck down as impermissible because it did not pass strict scrutiny. 33 The important consideration from Bakke was that Justice Powell identified the interest in the educational benefits that flow from a diverse student body as a compelling interest. 34 The Supreme Court reaffirmed these concepts in Grutter 35 when it struck down the undergraduate admissions policy that assigned a numerical value to minorities because it could not pass the muster of strict scrutiny. 36 The Court in Grutter stated that [t]o be narrowly tailored, a race-conscious admissions program cannot use a quota system. 37 Rather, it must remain flexible and allow for individualized evaluation that does not make race or ethnicity the defining feature of the application. 38 Furthermore, [s]trict scrutiny requires the university to demonstrate with clarity that its purpose is both constitutionally permissible and substantial, and that its use of the classification is necessary... to the accomplishment of its purpose. 39 Justice Kennedy made it clear that the District Court and the Fifth Circuit correctly gave the University deference on this issue of whether it constituted a compelling interest to justify racial 32. See Fisher, 133 S. Ct. at Id. at Id. at (referencing Regents of University of California v. Bakke, 438 U.S. 265, (1978)) (arguing that redress for past racial discrimination could not serve as a compelling interest) U.S. 244 (2003). 36. Fisher, 133 S. Ct. at Id. (quoting Grutter, 539 U.S. at 334). 38. Id. 39. Id. at 2418 (quoting Bakke, 438 U.S. at 305).

6 6 THOMAS M. COOLEY LAW REVIEW [2013 classifications. 40 However, that was not the true issue on appeal; rather, the question dealt with whether strict scrutiny was properly applied to determine if the consideration of race was narrowly tailored to accomplish its goal. 41 The Grutter court made clear that the University is to receive no deference on whether it is narrowly tailored. 42 To be narrowly tailored, the court must inquire into whether a university could have achieved diversity without using racial classifications. 43 Such an inquiry does not require exhaustion of every conceivable race-neutral alternative, but instead requires a university s serious, good faith consideration of workable raceneutral alternatives. 44 The Fifth Circuit improperly held that when the objective appears acceptable, it passes strict scrutiny under the serious, good faith consideration standard, which is giving too much deference to the University. 45 This is why the case was vacated and remanded because strict scrutiny was not applied to determine if the admissions policy was narrowly tailored. 46 The concurring opinion by Justice Thomas indicates that Grutter should be overruled because racial classifications in the admissions process of higher education are categorically prohibited by the Equal Protection Clause. 47 According to Justice Thomas, The Constitution abhors classifications based on race Justice Thomas firmly believes that decimation on the basis of race should only be allowed when the State must take action to prevent against anarchy or to prevent violence. 49 It should be clear, according to Justice Thomas, 40. Id. at Id. at Id. (emphasis added). 43. Id. 44. Id. (quoting Grutter, 539 U.S. at ) (emphasis added). 45. See id. at Id. 47. Id. at 2422 (Thomas, J., concurring). 48. Id. (quoting Grutter, 539 U.S. at 353) (Thomas, J., concurring in part and dissenting in part). 49. Id. at 2424 (Grutter, 539 U.S. at 353).

7 2013] FISHER V. UNIVERSITY OF TEXAS AT AUSTIN 7 that there is nothing pressing or necessary about obtaining whatever educational benefits may flow from racial diversity. 50 In fact, Justice Thomas advances the notion that the Constitution is color blind 51 and that [t]he Fourteenth Amendment views racial bigotry as an evil to be stamped out, not as an excuse for perpetual racial tinkering by the State. 52 Race relations in America have been in constant flux and will continue in a tumultuous direction. As Justice Thomas stated, [T]he University s discrimination stamp[s] [blacks and Hispanics] with a badge of inferiority. 53 Despite the dissatisfaction of Grutter and the majority s opinion in Fisher, the Supreme Court has, at least for now, maintained status quo as it relates to using race-conscious admissions policies. Justice Ginsburg s dissent contends that remanding this case is futile because the University s admissions policy was crafted and implemented using the Grutter opinion as a guideline. 54 The Supreme Court chose not to change the landscape of higher education forever by not actually ruling on the merits of this case. Inherent in its opinion is ample support of the landmark decisions that dealt specifically with racial classifications and creating a diverse student body for educational benefits. The important message to take away from this decision, which may not necessarily support the majority s holding, was from Justice Thomas s concurring opinion when he stated, Certainly all aspire for a colorblind society in which race does not matter.... But in Texas, 50. Id. 51. Id. at 2428 (furthering the argument advanced by the plaintiffs in Brown: [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. Tr. Of Oral Arg. in Brown v. Board of Education, O.T. 1952, No. 8, p. 7). 52. Id.; see also Defunis v. Odegaard, 416 U.S. 312, 342 (1974) (Douglas, J., dissenting)( The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. ). 53. Fisher, 133 S. Ct. at 2432 (quoting Adarand Constructors, Inc., v. Pena, 515 U.S. 200, 241 (1999)). 54. Id. (Ginsburg, J., dissenting).

8 8 THOMAS M. COOLEY LAW REVIEW [2013 as in America, our highest aspirations are yet unfulfilled. 55 The Fisher v. University of Texas at Austin decision implies that allowing race-conscious admissions policies is the best way to achieve a colorblind society. CHRIS JENNINGS 55. Id. at 2427 (Thomas, J., concurring).