In a surprising 7-1 vote, today the United States Supreme Court issued the long-awaited Fisher v. University of Texas (570 U.S. ___ (2013)) decision. Although many speculated that Fisher may effectively end affirmative action programs in the state university admissions context, the Court's decision was confined to the strict scrutiny review standard courts must use when race or ethnicity is used as a factor in the admissions process. The Court vacated and remanded the Fifth Circuit's decision which had approved the use of race as a factor in the University of Texas's (the "UT") admissions process, because it failed to apply the demanding "strict scrutiny" standard articulated in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 305 (1978), Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003).

In reaching its conclusion, the Court recounted its guiding decisions in Bakke, Grutter and Gratz, all of which directly address the contours of how and when race may be used as a positive factor in a public university's admissions process as a means to achieve the "educational benefits of a more diverse student body." 570 U.S. ___, p. 5. The Court reiterated that the "attainment of a diverse student body" provides a "compelling interest" to justify the consideration of race in admissions because "it serves values beyond race alone." Id. at p. 6.

Notwithstanding, the Court cautioned that "[r]ace may not be considered unless the admissions process can withstand strict scrutiny." Id. at 7 (emphasis added). To meet this demanding standard, a public university must clearly demonstrate that "its 'purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary…to the accomplishment of its purpose.'" Id. at 7 quoting Bakke, 438 U.S. at 304. On this point, some deference may granted to a public university's judgment with respect to the impact of diversity on its educational goals.

But the analysis does not end there. The university thereafter bears the burden to establish that its diversity mechanism is "narrowly tailored" to meet that goal. Id. at 10. The Court elaborated that the "reviewing court must ultimately be satisfied that no workable race-neutral alternative would produce the educational benefits of diversity." Id. at 11. Put another way, the public university bears the ultimate burden to establish that "workable race-neutral alternatives do not suffice." Id. On this latter point, the university receives no deference. Id. at 10. The Court therefore held that the Fifth Circuit erred because it approved UT's use of race as a factor in admissions based only on its representation of "good faith," improperly bestowing a "degree of deference" to the school in its review of the program. Id. at 11-13.

Because the Court determined that the Fifth Circuit failed to consider whether UT's admissions program was sufficiently "narrowly tailored" under the mandatory "strict scrutiny" standard, it vacated the appeals decision, and remanded it for further review under the correct standard.

While Fisher is limited to the public university admissions context and is therefore not binding precedent on admissions programs of private universities, or hiring or employment practices of private employers, the private sector will look to the Supreme Court's decision as guidance as they develop and implement voluntary diversity programs. While the private sector has more latitude than public universities in fashioning diversity programs, employers may seek to reduce legal risks of such programs by following critical principles articulated in the line of cases referenced by the Court. A narrow approach to the scope and timing of diversity programs are such key concepts. There are still potholes for employers to be careful to avoid, even when following these principles closely.

Stay tuned for more on this topic, as the United States Supreme Court took another case concerning affirmative action in the higher education context, Schuette v. Coalition to Defend Affirmative Action, where it will review a lower court's decision that found Michigan's straight ban on the use of race in college acceptance decisions was unconstitutional.