On June 23, 2016, the Supreme Court released its long-awaited opinion in Fisher v. University of Texas at Austin, a case that challenged the University’s consideration of race in its undergraduate admissions process. The Court upheld the University’s admissions process, holding that affirmative action remains constitutional within certain limits.

Background

This is the second time Fisher has been argued before the Supreme Court; previous blog posts provide an overview of Fisher’s procedural history and an overview of the Supreme Court’s first 2013 Fisher decision.

Notably, Fisher is the first case since the Supreme Court’s 2003 landmark decision in Grutter v. Bollinger to address the use of race in the admissions process.

Opinion

In a 4-3 decision, the Supreme Court held that the University of Texas’ use of a race-conscious admissions program is lawful under the Equal Protection Clause. Citing Fisher I, the Court reiterated and reaffirmed the exacting strict scrutiny standard that is applied to race-conscious admissions programs.

Before engaging in its analysis, the Court addressed the lengthy, eight year path of the Fisher case. The Court acknowledged that factual developments in this case have created a “somewhat artificial basis” for litigation, given that the plaintiff has “long since graduated from another college” and the University’s policies may have materially changed since the case began.

However, the Court made clear that the University had a “continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances,” noting that the burden required the University to periodically reassess “the constitutionality and efficacy of its admissions programs.” The Court stated that, going forward, such assessments “must be undertaken in light of the experience the school has accumulated and the data it has gathered since the adoption of its admissions plan.” Furthermore, in examining the data obtained from these assessments, an institution must take care to ensure that its admissions approach is tailored so “that race plays no greater role than is necessary to meet its compelling interest” of obtaining “the educational benefits that flow from student body diversity.”

After opining on the duties of the University to satisfy strict scrutiny, the Court addressed the narrow question of whether the University’s consideration of race as part of its holistic-review admissions process violated the Equal Protection Clause.

In answering that question, the Court pointed to the significant evidence the University provided to support its admissions policy, which used race as a “factor of a factor of a factor” in the holistic-review of an application. The University of Texas provided significant statistical and anecdotal evidence supporting its position, including evidence that race-neutral efforts to achieve educational diversity had previously failed. After considering the evidence, the Court determined that the University “met its burden of showing that the admissions policy it used at the time it rejected [Abigail Fisher’s] application was narrowly tailored.”

In closing, the Court stated:

The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary. The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.

What This Means To You

In reaffirming the constitutionality of affirmative action, Fisher II provides universities with three key compliance steps:

  1. Document. Documentation is crucial. Institutions should document all levels of institutional decision-making, taking particular care to articulate the institution’s compelling interest in diversity; its decision-making process in selecting an admissions policy; and the ways in which the institution’s chosen approach is narrowly tailored to achieve that compelling interest.
  2. Assess. The Court expects institutions to assess (and reassess) the need for race-conscious admissions policies on a regular basis. These assessments should also examine the effects of affirmative-action policies, and institutions should use the data they obtain to “scrutinize the fairness” of admissions policies.
  3. Tailor. Institutions should use the data and evidence gathered from these assessments “to assess whether changing demographics have undermined the need for a race-conscious policy” and should tailor admissions policies, as needed. In particular, institutions should ensure “that race plays no greater role than is necessary.”

Institutions must ensure their admissions policies comply with the exacting standards set forth in Fisher I & II. For an overview of Fisher I compliance tips, see our previous blog post.