London, 4 July 2013
On 24 June 2013, the US Supreme Court (the Court) in Fisher v University of Texas confirmed that considering an applicant’s race as part of a holistic evaluation process in a University admissions procedure does not necessarily violate the Equal Protection Clause in the Fourteenth Amendment to the US Constitution. However, the Court reiterated that any process which uses race as a factor must be subjected to strict scrutiny. This requires that the University shows clearly that its purpose or intention in using this factor is constitutionally permissible and substantial and that the use of the classification of race is necessary to the accomplishment of its purpose.
The case was brought by Ms Fisher, a “Caucasian” who applied for entry into the University of Texas in the 2008 class and whose application was rejected. In 2008, the University of Texas followed its admissions process by which it admitted the vast majority of its students through a “top 10% admissions” policy. According to this policy the University accepted all students in the top 10% of each Texas high school's graduating class, regardless of their race. The remainder of places were then offered to applicants who scored highly when their academic achievements were considered along with their “Personal Achievement Index” (PAI) score. The PAI score was determined using a holistic evaluation of applicants’ talents, leadership qualities, family circumstances and race.
Ms Fisher claimed that the use of race as a factor in this admissions process was contrary to the Equal Protection Clause contained in the Fourteenth Amendment to the US Constitution, which prevents states from denying any person within their jurisdiction from the equal protection of the laws. The University argued that their holistic admissions plan was constitutional and that, in line with previous case law, the benefit to all students arising from student diversity was a compelling interest which entitled them to use race as one of many factors in their admissions process. In considering the case, the Court of Appeals of the Fifth Circuit stated that courts must give significant deference to the University both in relation to whether there was a “compelling interest” which justified the consideration of race in the admissions process and in deciding whether the specific admissions plan was “narrowly tailored” to achieve its stated goal.
The Supreme Court relied on its earlier decisions in Regents of University of California v Bakke, Gratz v Bollinger and Grutter v Bollinger. It stated that the Court of Appeals in the present case was right to give deference to the University’s experience and expertise about its educational mission and its conclusion that a diverse student body would serve its educational goals. However, once a University has established that its goal of diversity stands up to strict scrutiny, the court must then examine whether the admissions process meets strict scrutiny in its implementation. Here, there should be no deference to the University. The reviewing court must be satisfied that “no workable race-neutral alternatives would produce the educational benefits of diversity”.
ERT welcomes the fact that the gains that had been made as a result of previous US Supreme Court decisions on affirmative action in education have not been lost in the present case.
To read ERT’s case summary click here
To read the US Supreme Court’s judgment click here
