SUPREME COURT PUNTS IN LONG- AWAITED RULING IN FISHER V. UNIVERSITY OF TEXAS

The ruling was handed down on 6/24/13 [2013 U.S. LEXIS 4701]. In a 7-1 vote (with Justice Kagan not participating), the Court decided that the district used the wrong standard for ruling summary judgment for the university, which, the 5th Circuit affirmed. Therefore, the case will be remanded to the 5th Circuit, which will likely send it back to the district court for a trial.

To backtrack, as we reported in an alert on 3/12/12, after the Supreme Court’s ruling in Grutter v. Bollinger (2003), the University of Texas at Austin (UTA) commissioned studies to determine if they had a “critical mass” of underrepresented minority students, as supported in the Grutter ruling. Based on the finding that such a critical mass was lacking, UTA proposed a new plan in which race became an additional consideration in its otherwise complicated admission scoring index. Applicants were divided into three pools: (1) Texas residents; (2) domestic non-Texas residents; and (3) international students, and students competed for admission in their respective pools. Texas residents were allotted 90% of available seats based on a two-tiered system in which a 10% (of high school graduating class) law was applied first, and remaining seats were filled based on Academic and Personal Achievement indexes. Admissions for domestic non-Texas residents and international students were based entirely on the Academic Index (AI) and the Personal Achievement Index (PAI). In short, the vast majority of students were admitted based on the 10% rule and the AI score, and only a small percentage of students (with sufficiently high AI scores and well-written essays) were eligible for having race treated as an additional factor.

The lower court rulings were that Grutter required courts to grant deference to the university in satisfying the two prongs of the strict scrutiny analysis (compelling interest & narrowly tailored solution). Speaking for the court, Justice Kennedy ruled:

Under Grutter, strict scrutiny must be applied to any admissions program using racial categories or classifications. A court may give some deference to a university's "judgment that such diversity is essential to its educational mission," …. provided that diversity is not defined as mere racial balancing and there is a reasoned, principled explanation for the academic decision. On this point, the courts below were correct in finding that Grutter calls for deference to the University's experience and expertise about its educational mission. However, once the University has established that its goal of diversity is consistent with strict scrutiny, the University must prove that the means it chose to attain that diversity are narrowly tailored to its goal.

In other words, the Supreme Court held that lower courts may grant deference in the determination of the first prong (diversity as a compelling interest), but must prove the second prong (that the program adopted in narrowly tailored).

There is something here for both proponents and opponents of diversity. For the proponents, there is clear-cut support for the Grutter ruling--the only dissenter being Justice Thomas, who would overturn Grutter. For the opponents, there is the hope that the lower courts will rule that the UTA plan is not narrowly tailored, or that the Supreme Court will overturn any ruling to the contrary. For interested but neutral parties, the ruling is a flat plain dud.

by Art Gutman, Ph.D., Professor, Florida Institute of Technology

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