On June 23, 2016, the Supreme Court of the United States decided one of the most anticipated cases of this year, Fisher v. University of Texas at Austin. This litigation, which had been pending since 2008, gives some guidelines on how universities should consider race in their application process.
The proposal to use race as an admission factor has to survive a three-part test of “controlling principles”: (1) The program must be able to withstand strict scrutiny, or be able to demonstrate that the use of the classification is necessary; (2) pursuing substantial benefits from a diverse student body is a proper academic judgment; and (3) the university bears the burden of proving race-neutral approaches do not suffice to achieve the goal. Petitioner Fisher had four arguments, all of which failed.
First Argument: The university has not clearly articulated what constitutes a critical mass. The Supreme Court, in this case (among others), has made clear that consideration of race in the admissions process is not for a limited number of students but a means of “obtaining the educational benefits that flow from student body diversity.” The university is actually prohibited from seeking a quota of minority students. Thus, there is no “clear number” to validate Fisher’s argument.
Second Argument: The university achieved “critical mass” by the Top Ten Percent Plan alone (a race-neutral initiative). As background, Texas has a legislatively mandated program that students who graduate from the top 10 percent of their high school are automatically admitted to any of the University of Texas (UT) schools. (This plan has actually been required to be capped, and most have to finish in the top 7 or 8 percent to be admitted under this category.) About 75 percent of UT’s freshman classes are admitted through this plan. However, this argument was invalidated by the Court as well. At the time of Fisher’s application, the university conducted many studies and concluded that the race-neutral policies did not help achieve its diversity goals. Because Fisher did not challenge the good faith in conducting these studies, the Court did not discuss them.
Third Argument: Race considerations have only had a minimum impact on the goals of University of Texas at Austin. According to the record, in 2003, 11 percent of Texas residents admitted outside of the Top Ten Percent Plan were Hispanic and 3.5 percent were African American. In 2007, 16.9 percent were Hispanic and 6.8 percent were African American. That is a 54 percent and 94 percent increase, respectively. The Court says that these increases show that consideration of race has had a meaningful impact on the diversity of the university’s freshman class.
Fourth Argument: There are other ways to achieve the university’s goals without having to consider race. The record shows that in 2004, when proposing to consider race and ethnicity in admissions, the university was seeking to provide an academic environment that offers a number of different ideas and cultures to prepare for the challenges of an increasingly diverse workforce. However, Fisher gave three suggestions for other ways to achieve this goal, each of which the Court rejected:
Intensify outreach to African American and Hispanic applicants. This first proposal fails because the university already created three new scholarship programs, opened new regional admission centers, increased the recruitment budget by $500,000, and organized over 1,000 recruitment events.
Alter the weight given to academic and socioeconomic factors. The second proposal fails because it ignores the fact that the university tried and failed to increase diversity by giving more weight to socioeconomic factors. It also ignores a point the Court made clear in the past, that the Equal Protection Clause does not force universities to choose between diversity and a reputation for academic excellence.
Uncap the top ten percent plan. The third proposal fails because it would sacrifice all other aspects of diversity while attempting to enroll a greater number of minority students. The Court gives examples on page 17 of the opinion, stating that using solely class rank “would exclude the star athlete or musician whose grades suffered because of daily practices” or “a student whose freshman year grades were poor because of a family crisis” but fought her way back up to right outside the top 10.
In sum, the Court found that a diverse student body is very important to our educational system. Race (among other diversity factors) plays a huge role not only in the classroom but also in the long run with our changing workforce demographics. However, this university, among others, must “engage in constant deliberation and continued reflection regarding its admission policies.” Diversity teaches students how to interact with people who may be different from them, and this is a necessary skill for success.
Keywords: litigation, diversity, inclusion, Fisher v. University of Texas at Austin, race-conscious admissions policy, diverse students, University of Texas