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The Supreme Court Speaks: The Current Status of Affirmative Action in College Admissions
By Arthur Katz, J.D.

Arthur KatzAffirmative action is a relatively new concept in government policy, the phrase probably being first used in U.S. policy matters in 1961 when President Kennedy, in order to correct for past discrimination, by Executive Order, mandated affirmative action to ensure equal opportunity in employment.  However, the principle of affirmative action is in conflict with the Constitution’s equal protection clause.

On Monday, June 24, the United States Supreme Court issued its long-awaited decision in Fisher v University of Texas at Austin.  Although it was anticipated that this decision would rule on the continuing validity, if any, of affirmative action, in connection with college admissions, the Court did not rule on the merits of the case, but concluded that the lower court had not adequately applied the correct standard of strict scrutiny in rending its decision, and remanded the case back to the Fifth Circuit Court of Appeals (the previous Court handling the case) for further proceedings.

The University of Texas has a two-tier admissions policy.  Every student attending a Texas high school who graduates in the top ten percent of his or her class is automatically admitted to the University.  The remaining slots are filled based on a holistic review of an applicant’s academic record and other materials submitted with the applicant’s application, in which review, and in an attempt to obtain greater diversity and increase minority enrollment, the applicant’s race is used as one of a number of “plus” factors.

Abigail Fisher, a Caucasian, was rejected for admission to the University’s 2008 entering class.  She contended that her academic record was superior to others who were admitted and sued the University and University officials alleging that her rejection violated the “equal protection clause” of the 14th Amendment to the U.S. Constitution.  The 14th Amendment, among other things, provides that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Fifth Circuit Court of Appeals, relying upon a prior Supreme Court decision (Grutter v. Bollinger), had upheld the University’s actions.  The Court of Appeals’ decision was based upon its view that substantial deference needed to be afforded to the University, both in the definition of the compelling interest in diversity’s benefits and in deciding whether the University’s admission plan was appropriately tailored to achieve its stated goal.

In Fisher, the Supreme Court, instead of ruling on the merits and either allowing or eliminating affirmative action from the admission process at the University of Texas, concluded that the lower court had not adequately applied strict scrutiny in its review.  The Supreme Court then gave additional guidance on the application of strict scrutiny and remanded the case for the lower courts to apply more fully such principles.  Among other things, the Supreme Court said: “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 other 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.  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. . . . 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, then the university may not consider race.” [citations omitted]

The Supreme Court preserved, for the present time, the use of race in college admissions decisions and mentioned that diversity of the student body can be a compelling interest for a university to pursue in its admissions process.  However, race-conscious policies are allowed only if there is a demonstrated necessity for them due to the lack of other alternatives.  On the other hand, if the same diversity objective can be reached using race-neutral policies, then the use of race-conscious policies are improper. 

The decision reached by the Supreme Court was most like the result of a negotiated compromise by the seven justices (of the eight deciding the case, with Justice Kagan recusing herself).  Justice Thomas joined the majority (while writing a concurring opinion) and noted that although he agreed with the Court’s conclusion he continues to be of the view that the use of race in a university’s admissions decisions is “categorically prohibited by the equal protection clause”.  He then noted that “Aside from Grutter, the [Supreme] Court has recognized only two instances in which a pressing public necessity may justify racial discrimination by the government”.

Justice Ginsburg issued the only dissenting opinion, concluding that the Court of Appeals already had made an adequate inquiry and its affirmation of the University of Texas’ admission determination should be upheld.  However, apparently, such view is not the law of the land.  As a result, most colleges, seeing the handwriting on the wall, may determine that they should no longer explicitly consider race as a factor in their admissions policy due to the high threshold needed to justify the practice and the Supreme Court’s requirement that such a policy may only be sustained if a court verifies its necessity.#

Arthur Katz is a corporate attorney and a member of the NYC law firm Otterbourg, Steindler, Houston & Rosen, PC.



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