Supreme Court Sends Diversity Case Back to Lower Court

By Megan McClean, NASFAA Director of Policy and Federal Relations 

The Supreme Court handed down their decision in the highly-anticipated college admissions case, Fischer v. University of Texas (UT). However the Court provided no new legal interpretation of the constitutionality of the usage of race as a consideration in admissions and instead sent the case back to a lower court of appeals, on the basis that they had erred in their original ruling.

NASFAA joined the American Council on Education on Oct. 31 in signing onto an amicus curiae ("friend of the Court") brief to the Supreme Court in support of diversity in higher education.

The Fischer case challenged the constitutionality of UT’s admissions practices. UT, following state law, provides guaranteed admission to in-state residents who are in the top ten percent of their high school class. Though UT admits a majority of its students through the “top ten” program, it also reviews applicants who are not in the top ten. Those applicants are reviewed using various factors including grades, standardized test scores, an essay, leadership qualities and in some cases other “special circumstances” which could include race and socioeconomic status.  It was this aspect of UT’s admissions policy that formed the basis of the Fischer claim.

Abigail Fischer, a white high school student in Texas who was denied admission to UT brought the case forward, arguing that minority students with lower credentials had received admission to UT over her and that this violated her rights under the equal protection clause of the 14th amendment. 

Justice Anthony Kennedy, considered by many to be the Court’s moderate voice and weathervane, wrote the 7-1 majority opinion in Fischer for the Court. Kennedy referred to precedent requiring “strict scrutiny” of institutional admission policies that consider race, finding that the lower Court of Appeals did not apply this scrutiny to UT’s policy, sending the case back for review. In other words, the lower court failed to determine whether UT’s admission policy was developed and implemented in a way that is “narrowly-tailored” to achieve diversity.

Fischer is not the first time the Court has heard a case about race-conscious admissions policies. Just ten years ago the Court heard Grutter v. Bollinger, which sought to answer the same question: If a public institution uses race as a consideration in its admission policy, does that represent a violation of the equal protection clause? Grutter focused on the admission policy at the University of Michigan’s law school.

The Court’s decision in Grutter held that diversity in postsecondary education remains a compelling state interest and that colleges may take race into consideration in admission decisions in order to help foster diversity, so long as their policies are narrowly-tailored. Colleges cannot, however, seek to fill a specific “quota” through their recruitment of minority students—a provision the Court upheld from a 1978 case, University of California v. Bakke, in which the Court declared that race as consideration in admission was acceptable so long as the school did not seek to fill a specific quota.

While it opens the door to additional scrutiny of affirmative action policies, it seems that there is nothing landmark about the Fischer case. The issue of race-conscious admissions will certainly continue to be a hot topic and will likely even make its way back to the Supreme Court within the next few years. For now, however, the takeaway for institutions on the topic: proceed as usual.

Updated: 11/4/2013 


Publication Date: 6/25/2013

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