Legal Watch: Affirmative Action Reaffirmed

By Risa L. Lieberwitz

The long history of Abigail Fisher’s legal battles against affirmative action in college admissions programs began in 2010, when Fisher filed a lawsuit challenging the University of Texas at Austin’s decision to deny her admission. Fisher, a white applicant, alleged that UT’s consideration of race in admissions decisions violated the Fourteenth Amendment’s Equal Protection Clause. Fisher did not challenge Texas’s “Top 10 Percent Plan,” which guarantees that Texas high school students who graduate near the top of their class will be admitted to any public university in the state. This program increases diversity by admitting the best students from each Texas school, including schools with predominantly black or Latino students. Rather, Fisher challenged UT’s consideration of race as a factor in its holistic review of applicants not admitted under the 10 percent plan.

In the first Fisher v. University of Texas at Austin decision in 2013, the Supreme Court affirmed its long-standing precedent that colleges and universities have a compelling interest in ensuring diversity and can take account of an applicant’s race as one of several factors in the admissions program. The ruling, however, held that the lower court had not properly applied the “strict scrutiny” standard to determine whether UT’s affirmative action program was tailored narrowly enough to achieve this compelling state interest. In particular, the Court held that the university must prove that “race-neutral alternatives” will not suffice to achieve diversity. In July 2014, the Fifth Circuit Court of Appeals again upheld the UT admissions plan. The Supreme Court then granted Fisher’s petition for review. The AAUP joined amicus briefs at each stage of this case, supporting affirmative action.

On June 23, 2016, the Supreme Court decided the second Fisher v. University of Texas at Austin case, with only seven justices taking part following Justice Kagan’s recusal from the case and the death of Justice Scalia. By a 4–3 vote, the Court upheld the constitutionality of UT’s admissions program. After the tortuous trip through the federal courts, supporters of affirmative action were relieved by this outcome. There was also some surprise that Justice Kennedy, who had authored the Court’s 2013 Fisher opinion and dissented from the 2003 decision in Grutter v. Bollinger upholding the use of race in a holistic admissions plan, wrote the 2016 Fisher opinion for the Court.

The Court’s decision recognizes that colleges and universities should be given “considerable deference . . . in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Educational goals may include the benefits of increasing diversity in the student body, such as the promotion of cross-racial understanding and the preparation of students for an increasingly diverse workforce and society.

While the second Fisher ruling reiterated that colleges and universities must prove that “race-neutral alternatives” will not suffice to meet permissible goals of affirmative action, the Court concluded that UT had sufficient evidence that its 10 percent plan was not adequate, by itself, to meet diversity goals. Significantly, the Court recognized, “Wherever the balance between percentage plans and holistic review should rest, an effective admissions policy cannot prescribe, realistically, the exclusive use of a percentage plan.” By adding a “holistic” evaluation of applicants who were not admitted under the 10 percent plan, UT was able to consider race as one factor in a broader assessment of qualifications.

The Court’s analysis, however, maintains the contradiction of requiring that colleges and universities seek “race-neutral alternatives” to increase diversity in a society with deep systemic racial inequalities. The Court fails to confront this issue even as it acknowledges, citing Justice Ginsburg’s dissent in the first Fisher ruling, that UT’s facially race-neutral 10 percent plan promotes diversity in admissions through its application to racially segregated neighborhoods and high schools in Texas.

The Court noted that the “prospective guidance” of its decision is limited to some extent by the particularities of the UT case. Despite this, the Court’s decision provides guidance to colleges and universities concerning the criteria for evaluating affirmative action admissions programs. It also emphasizes that these institutions have “a continuing obligation” to engage “in periodic reassessment of the constitutionality, and efficacy, of admissions program[s].” While it requires ongoing study and evaluation, the Court’s 2016 Fisher ruling is good news for the future of affirmative action in university and college admissions.

Risa L. Lieberwitz is professor of labor and employment law at Cornell University and general counsel of the AAUP.