Affirmative Action after Fisher II: Lessons from the University of Texas Experience

Affirmative Action after Fisher II: Lessons from the University of Texas Experience


Now that the Supreme Court has upheld the use of race as, in the words of the district court, a “factor of a factor of a factor” in the University of Texas’s admissions program, institutions can glean some guidance from the decision to create and administer their own race-conscious admissions programs.  This article summarizes the admissions program at issue in Fisher II and analyzes the key takeaways from the Court’s decision.

The University’s Race-Conscious Admissions Program

The University of Texas (“UT”) created its admissions program to work within the confines of Texas’s “Top Ten Percent Law,” which guarantees admission to the state’s public universities to the highest-performing students attending Texas public high schools.  Because of the Top Ten Percent Law, UT fills up to 75 percent of its freshman classes with “Top Ten Percent” admits.  The remaining 25 percent of admitted students are evaluated  using a “holistic” assessment process in which an applicant’s race may play a role.  Specifically, UT assesses applicants using a combination of two factors:  (1) the “Academic Index” (comprised of high school academic performance and SAT score) and (2) the “Personal Achievement Index” (which is determined with a holistic review of the applicant’s entire file, and may include race as a relevant sub-factor within this review).  UT implemented this race-conscious holistic review after the Supreme Court approved of the University of Michigan Law School’s similar model, which did not assign “points” to members of any particular race, but instead treated race as a potentially relevant factor for admission. 

Abigail Fisher’s Equal Protection Challenge to the Admissions Program

Abigail Fisher applied for admission to UT’s 2008 freshman class.  She did not qualify for admission under the Top Ten Percent Law, and she was rejected under the holistic file review process.  Ms. Fisher sued UT, alleging that the university’s consideration of race as part of the admissions review process disadvantaged her and other Caucasian applicants, thereby violating the Equal Protection Clause.   The district court granted summary judgment in favor of UT, and the Court of Appeals for the Fifth Circuit affirmed.  In 2013, Ms. Fisher’s case reached the Supreme Court for the first time.  In Fisher I, the Court vacated the Fifth Circuit’s decision and remanded the case on the grounds that the appellate court had applied an overly deferential standard to UT’s admissions program.  On remand, the Fifth Circuit again affirmed the constitutionality of the program, and so Ms. Fisher brought her case back to the Supreme Court. 

The Supreme Court Upholds the Admissions Program as Constitutional

In Fisher II, the Supreme Court  affirmed the Fifth Circuit’s decision in favor of UT.  Under a strict scrutiny analysis, UT’s race-conscious admissions program must satisfy two prongs:  UT must have both a compelling government purpose for considering race, and its use of race must be narrowly tailored to achieve that purpose.  The Court in Fisher II found the institution to have satisfied both the compelling government interest and narrow tailoring requirements.  Justice Alito (joined by Chief Justice Roberts and Justice Thomas, concurring) authored a vigorous dissent, opining that UT is now being given just as much deference as the Court rejected in Fisher I and that the holistic plan still cannot withstand judicial scrutiny.  The key aspects of the Court and Justice Alito’s analyses are discussed in the following section.

Takeaways from Fisher II

While the UT model has survived, each public institution implementing a race-conscious admissions policy will retain the burden of proof to demonstrate that its specific plan will survive strict scrutiny.   University administrators should consider the following guidance post-Fisher II  to ensure that they are meeting this continuing obligation.

  • Clear and concrete institutional goalsFisher II re-affirmed that the pursuit of student body diversity can constitute a compelling government interest.  No particular level of minority enrollment will be required to demonstrate a “critical mass” of minority students, because the institution’s interest in a race-conscious admissions policy is not a particular number of students but rather “the educational benefits that flow from student body diversity.”  According to the Court, UT did meet its burden in articulating concrete and precise educational benefits:  ending stereotypes; promoting cross-cultural understanding; preparing students for an increasingly diverse workforce and society; and cultivating leaders with “legitimacy in the eyes of the citizenry.”  In his dissenting opinion, Justice Alito strongly disagreed that UT defined these goals with sufficient clarity. 
  • Know which goals are still constitutionally impermissible:  “Racial balancing” is still off the table.  The Court was careful to note that the holistic admissions policy could potentially benefit applicants of any race, and that UT’s rubric only considered race as a "factor of a factor of a factor.”  Any process which makes race a “mechanical” plus factor will still fail constitutional scrutiny.
  • Specific review of race-neutral alternatives:  UT’s actions were supported by a year-long study which found that its race-neutral policies and programs did not meet its diversity-related goals.  Justice Alito took issue with the fact that UT’s study only took place after the announcement of UT’s holistic admissions program.  If a public institution is considering including race in its admissions determinations, a study to determine whether this is necessary should be completed before the announcement of the plan’s  implementation.
  • Document retention:  Although sufficient to survive scrutiny in the Fisher litigation, institutions should not use UT’s document retention policies as a model.  In his dissent, Justice Alito expressed dismay over UT’s lack of retention of relevant evidence on the admissions and performance of students admitted under the “Top Ten Percent” plan.  While the majority opinion attributed UT’s spotty recordkeeping to the fact that the University was required to admit the “Top Ten Percent” students, Justice Alito pointed out that UT should have had access to much more information than it provided during the litigation.  For example, UT could have compared enrollment of “Top Ten Percent” and holistic admitted students, or could have compared their achievement scores assigned as matriculated students.  Going forward, it is likely that courts will require institutions to meet a higher bar to demonstrate good-faith attempts to retain records of admissions decision-making, student enrollment, and academic performance.
  • Ongoing policy evaluation and refinement:  Both the majority opinion and dissent make clear that institutions have an affirmative obligation to continuously review their admissions policies and procedures.  Policies that may pass judicial scrutiny today may not survive in the future.  Institutions must ensure that they are responding to evolving trends in both their internal community and their societal context—and must show that they have appropriately documented these ongoing evaluations. 

Looking Ahead

It is unlikely that Fisher II will stem the tide of constitutional challenges to race-conscious admissions policies.  Indeed, lawsuits are currently pending in federal district courts which challenge the admissions policies at Harvard University and the University of North Carolina-Chapel Hill.  And a group of Asian-American students have asked the Department of Education to review alleged racial “quotas” at Yale University, Brown University and Dartmouth College. Colleges and universities can best protect their admissions policies from challenge if they closely hew to the guidance laid out by the Fisher II majority opinion, attempt to address the issues set forth in Justice Alito’s dissenting opinion, and follow future decisions in the lower courts that apply the Court’s analysis to other admissions programs.

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