July 12, 2016 Practice Points

Affirmative Action Decision at University of Texas

By Sathima Jones

The Supreme Court, in a decision over three years in the making, upheld the constitutionality of affirmative action programs at the University of Texas and reaffirmed the principle that public institutions employing similar sui generis schemes may place limited consideration on race as a factor in its admissions programs. 

In Fischer vs the University of Texas at Austin et al., the Court held the race-conscious admissions program at the University of Texas that was in use at the time of petitioner’s application as lawful under the Equal Protection Clause. The Court safeguarded affirmative action from distinction and assured public institutions that race may be considered as one factor among many in assessing an applicant’s complete application package in order for an educational institution to insure that it has a diverse student body, if such consideration produces a measurable effect on diversifying the population. 

As you may recall, the case was before the Supreme Court in 2013. The petitioner, Abigail Fisher, a resident of Texas, by and through her attorneys argued that the denial of her admission to her state university in 2008 was as a result of the Equal Protection Clause because the program employed at the University of Texas gave minority students an unnecessary advantage toward admissions with no measureable effect on the diversity of the entering class.  

The admissions program at issue notably combines a holistic approach to application review with a percentage plan. Under the percentage plan, the University of Texas grants automatic admission to graduating high school seniors from within the state of Texas who rank in the top ten percent of their class. Thus, students from a wide selection of schools, including those with dense minority populations and those in lower income neighborhoods, are guaranteed admission to the university and add diversity to its student body.  

Under the second part of the program, the remaining students are selected from within the state of Texas and nationwide under a complete application review, which accounts for academic achievement, extracurricular activities, and other factors, including among them race and ethnicity.

Despite the fact that Fisher was largely denied admittance based on the ten percent plan, her challenge focused on the university’s holistic review process. In response to Fischer’s allegations, the University argued that the top ten percent program alone did not provide sufficient diversity results in the entering class because it skewed toward top performing students who may in many ways represent a similar applicant pool.  

In a ruling that came as a surprise to the court because of Kennedy’s vehement demand that the case be sent back to the federal appeals court for more scrutiny on the university program, Kennedy drafted the majority opinion, emphasizing the university’s need for the holistic review process in addition to the percentage plan. Kennedy reasoned that the top ten percent plan alone did not lead to a sufficiently diverse student body. “[A]n admissions policy that relies exclusively on class rank creates perverse incentives for applicants. Percentage plans ‘encourage parents to keep their children in low performing segregated schools, and discourage students from taking challenging classes that might lower their grade point averages.’” 

Although the decision upholds and safeguards the use of affirmative action schemes for public institutions, practitioners must remain wary in advising their educational clients that utilize ethnic/racial consideration in the application process to maintain comprehensive records of application review process. The Court’s 4–3 ruling (Majority: Ginsburg, Sotomayor, Kennedy, and Breyer; Dissenting: Alito, Thomas, and Roberts) does not give universities carte blanche to employ racial classification in all programs designed to attract minorities to their campuses. Any program that employs such consideration is subject to “strict scrutiny,” and although the Supreme Court has wavered in its application of the strict scrutiny standard in racial classification cases, the current social climate has provided a compelling government interest in itself for the necessity of programs designed to level the playing field for Americans born without certain advantages.  

What is left then is for institutions to ensure that any programs they employ are narrowly tailored using the least restrictive means possible. Universities are not absolved from the need to meet high standards when granting preferences to students. “Asserting an interest in the educational benefits of diversity at large is insufficient.” Also, “[a] university’s goals cannot be illusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them to satisfy the constitutional requirement that government classification based on race satisfy a compelling interest.” Institutions must be advised to keep detailed, clear and comprehensive records of all of its admissions review process, the weight given to each factor considered, and to be sure not to consider race on its own as a bonus factor—race must be considered in tandem with a number of other factors about any applicant. 

Sathima Jones is an associate at Wade Clark Mulcahy in Philadelphia, Pennsylvania.

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