In an Opinion authored by Justice Anthony Kennedy for a 7-1 majority, the United States Supreme Court in Fisher v. University of Texas at Austin, et al.,1 allowed public colleges and universities to retain their affirmative action programs, at least for the time being. But the Court also issued a stern reminder that to survive a legal challenge these programs must meet the Fourteenth Amendment “strict scrutiny” standard of review, which is applied to government actions or decisions that take race into account. After revisiting the meaning of that standard as applied to university admissions programs where race is used as a factor, the Court reversed and vacated the Fifth Circuit Court of Appeals’ decision to uphold the University of Texas’ admissions policy, which the University had adopted after the Supreme Court’s decision in Grutter v. Bollinger.2 With only Justice Ruth Bader Ginsburg dissenting, the Supreme Court held that the lower courts had failed to apply “strict scrutiny” correctly. However, rather than strike down the University’s program, the Supreme Court remanded the case to the lower courts “so that [the University’s] admissions process can be considered and judged under a correct analysis.” This OnPoint reviews the Court’s opinion.
Background
In 2008, Abigail Fisher applied for admission to the University of Texas at Austin, the state’s flagship university and, as the Supreme Court observed, “one of the leading institutions of higher education in the Nation.”3 At the time Fisher applied for admission, the University’s admissions program expressly considered the race of applicants as part of its selection criteria.4 In 1996, the Fifth Circuit in Hopwood v. Texas5 had invalidated an earlier plan for the University that also had expressly taken race into account in making admissions decisions. Responding to Hopwood, the University stopped taking race into consideration and instead utilized a standard that examined a variety of other factors the University deemed relevant to the admissions process. The University also expanded its outreach programs.6
The Texas state legislature also responded to Hopwood by enacting a measure known as the “Top Ten Percent Law.” This measure grants automatic admission to any state college in Texas, including the University of Texas at Austin, to all students who graduate in the top 10% of their classes at high schools that meet certain standards. The Supreme Court’s Opinion in Fisher made a point of noting that under the post-Hopwood racially-neutral admissions rules as augmented by the Top Ten Percent Law, the percentages of African-American and Hispanic students enrolled at the University were higher than they were under the pre-Hopwood program that took race into account.7
The University revised its admissions program again in 2004 after the Supreme Court’s decision in Grutter, where the Court upheld a University of Michigan Law School admission process that used race as one of several factors in making its admissions decisions. Following a review, the University essentially made a student’s race one of a number of factors used to compute a “Personal Achievement Index,” which was combined with an academic score to determine each applicant’s placement on a grid. Students falling above a certain line on the grid were admitted under the Texas plan; students falling below the line were not. Although race was not assigned “an explicit numerical value” in these computations, it was “undisputed” that race “was a meaningful factor.”8
Petitioner Fisher applied for admission to the University’s 2008 class and was rejected. She then sued the University and various officials, claiming that the University’s use of race in its admissions process violated the Equal Protection Clause. The parties cross-moved for summary judgment and the district court granted the University’s motion. The Fifth Circuit affirmed.9 As the Supreme Court read it, the Fifth Circuit’s opinion10 obligated courts applying Grutter to give “substantial deference” to the University both in its review of the school’s “compelling interest in diversity’s benefits” and in deciding whether the University’s specific plan for achieving diversity in its student body was sufficiently “narrowly tailored” to meet the constitutional standard. After the Fifth Circuit denied Fisher’s petition for rehearing en banc over the dissent of several judges, Fisher petitioned for a writ of certiorari, which was granted.11
The Majority's Analysis
The Supreme Court’s analysis in Fisher focused primarily on whether the Fifth Circuit had applied “strict scrutiny” properly. Fisher’s majority acknowledged that in Grutter the Court had observed that strict scrutiny should not be treated as “strict in theory but fatal in fact.”12 But the Fisher majority also warned that the scrutiny to be applied had to be sufficiently “strict” – that is, it could not be “strict in theory but feeble in fact.”13 In the end, the Court vacated the Fifth Circuit’s opinion and remanded the case for further proceedings because it found that the circuit court’s application of the “narrowly tailored” prong of the strict scrutiny standard had not been stringent enough.
The Court began its analysis by making clear that it was not overruling but applying what it referred to as the “three decisions that directly address the question of considering race and or minority status as a positive or favorable factor in a university’s admissions process, with the goal of achieving the educational benefits of a more diverse student body.”14 The cases were Regents of Univ. of Cal. v. Bakke,15 and the two University of Michigan cases decided in 2003, Grutter v. Bollinger16 and Gratz v. Bollinger.17 Reading these cases with other affirmative action decisions, the Court stated that, “[j]udicial review must begin from the position that ‘any official action that treats a person differently on account of his race or ethnic origin is inherently suspect,’ ” and is thus subject to strict scrutiny under the Fourteenth Amendment. Strict scrutiny, the Court stated, is a “searching examination” that puts the burden on the government and not the individual challenging the racial classification, to prove that its reasons for enacting the classifications are “clearly identified...
