On Wednesday, October 10, 2012, the Court will hear argument in one of the most significant cases of the current term, Fisher v. University of Texas at Austin (No. 11–345). Fisher addresses once again the controversial issue of the use of race in university and college admissions.
The case involves a challenge to the use of race by the University of Texas at Austin (“UT”) as one of many factors in admissions decisions for a relatively small portion of its freshmen class. While the case might be decided on narrow grounds specific to UT’s program, it is also possible that the Supreme Court might address the broader question of whether the use of race in higher education admissions policies should be further limited or banned entirely.
As a result, the case has attracted enormous attention as reflected by the filing of over 90 amicus briefs. More than 70 of those briefs were submitted in support of UT, including briefs for the United States and for education, business, legal, civil rights and other groups representing a wide spectrum of societal interests.
For more than 30 years many public universities and colleges – like many private institutions of higher learning – have assumed they could use race as one of many factors in a holistic review of individual students’ qualifications for admission to achieve a diverse student body, provided that the method used did not amount to a disguised quota. This assumption was based on Justice Lewis Powell’s concurring opinion in the 1978 case of Regents of University of California v. Bakke, and it was confirmed and elaborated upon nine years ago in Grutter v. Bollinger.
In Grutter, a 5–4 majority, in an opinion authored by Justice Sandra Day O’Connor, held that the achievement of a diverse student body at the University of Michigan Law School was a compelling state interest and that the Law School’s narrow use of race as one of many factors to achieve a “critical mass” of minority students to satisfy that interest was narrowly tailored and therefore met the test of strict scrutiny applied to the use of race in the context of higher education.
Grutter defined “critical mass” as a sufficient number of minority students to avoid racial or ethnic isolation; to dispel the notion that the minority students were spokespersons for their minority group; to dispel racial or ethnic stereotypes; to produce robust classroom discussion reflecting diverse viewpoints; and to produce graduates who would be able to function in an increasingly diverse global environment and provide diverse leadership in key areas of the nation’s society such as the military, business, and government. In reaching its decision the Court gave deference to the Law School’s expertise as to the need for diversity to achieve the school’s academic mission.
Fisher raises questions about the use of race in admissions policies in a different setting than Grutter. After an earlier race-conscious admissions process at UT was held, in 1996, to violate the Equal Protection Clause, to stem the serious decline in diversity that followed, the Texas legislature adopted a race neutral means of achieving diversity by which students ranked in the top 10% of students at Texas public high schools would be automatically admitted to UT. By 2003, this program had restored the number of minority students to 1996 levels. UT officials, however, found that this increase failed to take account of changed state-wide demographics, particularly the exceptional growth of the Hispanic population, and the lack of diversity in a very large number of smaller classes. Moreover, they considered the top 10% program an inflexible device that hindered UT from maximizing its diversity and other legitimate goals and entailed perverse incentives noted in Grutter. Accordingly, following the Supreme Court’s decision in Grutter, UT supplemented the top 10% program with a policy using race as one of many factors in admissions decisions for students not qualifying for the top 10% program.
Petitioner Abigail Fisher, a white applicant who fell in the below-top-10% category filed this suit after she was denied admission to UT. She claimed that the race-conscious admissions program violated her constitutional rights under the Equal Protection Clause. The Supreme Court granted her petition for review of a Fifth Circuit decision affirming the dismissal of her suit and upholding UT’s admissions policy as consistent with Grutter.
Fisher maintains that UT already achieved a critical mass of diverse students through the top 10% program and that accordingly the admissions program applied to those below the top 10% is not narrowly tailored because it is unnecessary to achieve a compelling interest in diversity. She claims that UT’s reference to state-wide demographics in considering critical mass indicates that the program is a disguised racial quota system and that UT’s use of the program to achieve classroom diversity is an unachievable goal that would perpetuate the use of race without limit. Fisher also argues that the Fifth Circuit misread Grutter, and failed to faithfully apply strict scrutiny, by according deference to UT officials’ judgment that its program was necessary to achieve critical mass. Finally, Fisher argues that if Grutter can be read to support the lower court’s decision, Grutter should be limited or overruled.
Speculation about the outcome on these issues—especially whether Grutter might be limited or overruled—is fueled by changes in the Court’s composition since Grutter. Justice Samuel Alito, who replaced Justice O’Connor, previously joined in an opinion by Chief Justice John Roberts (who replaced Chief Justice William Rehnquist) that expressed strong opposition to the use of race in admissions policies seeking to modestly ameliorate de facto racial segregation in urban public schools. We note, however, that the Chief Justice’s opinion carefully distinguished the K-12 plans involved in that case and their use of numerical quotas from the higher education setting of Grutter and Grutter’s emphasis on the use of race only as one factor in a holistic, individualized review of each student. Justices Antonin Scalia and Clarence Thomas dissented in Grutter, flatly rejecting the use of race in admissions policy. Justice Kennedy is once again looked on as the swing vote. While he too dissented in Grutter, he there endorsed Justice Powell’s Bakke concurrence and dissented only because he maintained that the Law School’s admissions program, as operated, amounted to a disguised quota. Justice Kennedy also has recognized that race-conscious remedies may still be needed in some circumstances, but only as a last resort after race-neutral remedies are determined to be inadequate. Because Justice Kagan has recused herself, a 4 to 4 tie vote is possible, in which case the Fifth Circuit decision would be affirmed.
For more details, please read on.
In 1996, the Fifth Circuit in Hopwood v. University of Texas, struck down as a violation of equal protection a UT policy that used race in admissions decisions. UT thereupon eliminated race as a factor in admissions and substituted applicants’ socio-economic background as a race-neutral consideration but that failed to stem a sharp decline in diversity. In an effort to remedy that decline, the state legislature enacted the top 10% law, guaranteeing admission to any student graduating in the top 10% of a Texas public high school class. In the years following enactment of the 10% law, UT’s minority enrollment increased significantly, reaching levels similar to those existing in 1996. But the law was less successful by other measures. It failed to keep up with Texas’ growing minority population, especially that of Hispanic persons. Moreover, nearly 90% of smaller classes—sections with 10–24 students—had no more than one African-American student and in many cases, none. The 10% law also hindered UT’s ability to enroll a class that was both academically excellent and broadly diverse within groups of underrepresented minorities. For example, it limited UT’s ability to admit African-American and Hispanic students who were below the top 10% of their class in more competitive and academically rigorous high schools—or at private schools—but who had higher SAT scores or more compelling stories of personal achievement and who could make a greater contribution to diversity than their top 10% counterparts.
For these reasons, among others, in June 2003, following the Supreme Court decision in Grutter, UT again adopted an admissions policy that considered race as one factor of many in a holistic review of applicants not qualifying for automatic admission under the 10% law. Under this policy, the school assigned each student an academic index (AI) score, based on the applicant’s high school class rank and curriculum and standardized test scores, and a personal achievement index (PAI) score, based on two applicant essays and a subjective score between 1 and 6 to reflect leadership potential, extracurricular activities, honors and awards, work experience, and “special circumstances.” Beginning in 2005, race was considered as one of the “special circumstances” in determining an applicants’ PAI score. The combined AI and PAI scores then determined admission. This policy applied to only a small segment of the freshmen applicants and students. In 2008, for example, students in the top 10 % program constituted 88% of all admissions offers and 80.1% of freshmen who accepted.
Petitioner Abigail Fisher, a white applicant to UT who did not qualify for the 10% program and was denied admission under the supplemental policy, brought suit in the United States District Court for the Western District of Texas claiming her right to equal protection was violated by the race-conscious admissions policy. The district court granted summary judgment dismissing her suit, holding that the admissions policy met the requirements of Grutter. On appeal, the Fifth Circuit affirmed in a unanimous decision. In reaching its decision, the Fifth Circuit determined that UT’s policy involved an individualized, holistic review of each student and rejected Fisher’s claim that the policy was a disguised quota system. It then held that in such cases “Grutter teaches that… courts must afford a measure of deference to the university’s good faith determination that [such] race conscious measures are necessary to achieve the educational benefits of diversity, including attaining a critical mass of minority enrollment.” It then concluded that the “university’s decision to reintroduce race-conscious admissions was adequately supported by ‘the serious, good faith consideration’ required by Grutter.”
Judge Garza wrote a concurring opinion explaining that he joined the majority because it faithfully applied Grutter, but did so despite his view that Grutter was erroneously decided, because that error “could only be rectified by the [Supreme] Court.” He maintained among other things that Grutter “abandon[ed] strict scrutiny and substituted… a hopelessly deferential standard that ensures raced-based preferences in university admissions will avoid meaningful judicial review for the next several decades.”
Judge Edith Jones, in a dissenting from the denial of rehearing en banc, maintained that the panel decision “extended” Grutter by adopting a new “serious good faith consideration” standard of review, watering down Grutter’s reliance on strict narrow tailoring,” by allowing a race-conscious admissions policy although the top 10% program had already achieved diversity and by appearing “to countenance an unachievable and unrealistic goal of classroom diversity.”
The Case Before the Supreme Court
In the Supreme Court, Fisher maintains that UT failed to satisfy Grutter’s requirements of strict scrutiny because it could not show by “strong evidence” that its admissions policy was necessary and narrowly tailored to achieve a compelling interest in diversity. She argues that UT cannot show its race-conscious admissions policy is necessary to meet a compelling interest in diversity, given the significant minority representation already achieved through use of the top 10% program.
Moreover, UT’s admissions policy, she argues, is not being used to achieve a “critical mass” as defined in Grutter. Pointing to UT’s comparisons of minority-student representation to state-wide minority demographics, she argues that UT’s policy is simply a form of unconstitutional racial balancing. Fisher also rejects UT’s goal of classroom diversity as inconsistent with Grutter, which, she claims, defines “critical mass” only in terms of student-body diversity. She maintains that adopting classroom diversity as a “benchmark for critical mass would promote the use of race in perpetuity”, “justify racial engineering at every stage of the university experience…” and could never be achieved except by making race a dominant factor for admissions.
Fisher further argues that UT’s admission policy fails “narrow tailoring” because the additional minority representation it produces is so insignificant that it indicates that the same diversity goals could be achieved by race-neutral policies.
Fisher maintains that the Fifth Circuit avoided these constitutional obstacles by substituting a good faith, process-oriented review standard that was inconsistent with strict scrutiny. She maintains that Grutter limited universities to a measure of deference in claiming an unsatisfied educational interest in student-body diversity. Finally, Fisher argues that if the Fifth Circuit correctly read Grutter as supporting UT’s policies, then Grutter should be clarified or reconsidered to restore the correct meaning of strict scrutiny.
In response, UT begins by emphasizing how small a part race plays in its holistic Personal Achievement Index and its overall admissions policy, characterizing race as “a factor of a factor of a factor of a factor” in its admissions policy. Responding to Fisher’s argument that the policy produced so little additional minority representation, UT argues that this is a virtue, not a vice, and demonstrates how narrowly tailored its policy is.
UT also rejects the argument that the top 10% program precludes its use of a race-conscious policy: It notes that the top 10% program lacks flexibility and may result in denial of admission to students below the top 10% who, because they attend more competitive high schools with more rigorous curricula may have higher academic qualifications, more diverse backgrounds, and more compelling personal achievement narratives, than some students admitted under the top 10% program. Top 10% admissions programs, UT also argues, lack the capacity of holistic programs to consider diversity within racial groups. For example, it prevents consideration of applicants within racial groups from different socio-economic strata that help shatter racial stereotypes. Finally, UT points to the top 10% program’s perverse incentives to maintain racially segregated high schools noted disapprovingly in Grutter.
UT rejects the charge of racial balancing, pointing to the extensive record concerning the operation of its holistic review process and the absence of any monitoring to achieve particular numerical goals. It points to a concession by Fisher that UT has established no “goal, target or other quantitative objective” for admitting minorities. UT dismisses the charge that its references to state-wide demographics reflects racial balancing, noting that Grutter supports references to such numbers as necessary to determine whether a racial group is underrepresented and whether to consider race at all. Indeed, UT argues, the charge of racial balancing is even weaker here than it was in Grutter, because unlike the University of Michigan Law School, it did not keep track of the number of minority students admitted during the admissions process.
UT also rejects Fisher’s argument that classroom diversity is not relevant to the kind of diversity embraced within Grutter’s conception of diversity and “critical mass.” It emphasizes that its objective is the same compelling interest in the educational benefits flowing from diversity that Grutter found compelling – a robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and helping to produce future leaders. UT asserts that fostering diversity in the classroom is only one way of achieving that objective but that its interest in diversity extends beyond the classroom to “a student body that permits all students to experience concrete benefits from diversity.” UT argues that a “critical mass” of diverse students varies with educational setting and that diversity at a classroom level is “especially important … at a massive university like UT, where students are more dispersed and the vast majority live off campus.” UT also notes that “the fact that African-American and Hispanic students were nearly non-existent in thousands of classes was a red flag that UT had not yet fully realized its constitutional interest in diversity.”
UT also rejects Fisher’s assertion that the Fifth Circuit abandoned strict scrutiny in favor of an unduly expansive deference to the university. Instead, it argues, the Fifth Circuit simply recognized that subsidiary facts in the strict scrutiny analysis may involve judgments within the ambit of academic freedom protected by the First Amendment but that the Fifth Circuit did not defer to UT’s belief on the ultimate question of whether its policy was narrowly tailored, or whether its policy involved individual consideration or was a disguised quota that made race a predominant factor in admissions.
Finally, UT rejects any suggestion Grutter should be overruled or limited. To begin, UT maintains that such an issue was not encompassed in the question presented for review. In any event, it argues, Fisher has not shown any of the factors that would justify overruling Grutter or any departure from stare decisis –the binding effect of precedent. Such a departure must be rare and confined to special circumstances that are not present here. UT notes that Fisher has not challenged the Court’s holding that universities have a compelling interest in diversity or shown that the standards of Grutter are unworkable or that its legal principles have been undermined by subsequent decisions. Moreover, UT argues, overruling Grutter would upset admissions programs used for decades by public and private universities and colleges modeled on Justice Powell’s concurrence in Bakke and it would upset societal interests in diversity to which these programs contribute. It also notes the potential damage to the Court’s legitimacy if the Court were to overrule Grutter when nothing has changed since it was decided, other than the composition of the Court.
WHAT TO EXPECT
UT has made a very persuasive case that its use of race in its admissions policy meets the test of Grutter and Bakke for holistic review in which race is only one factor of many in an individualized evaluation of each student. Fisher’s argument that the policy is a disguised quota is belied by her claims that the gains in diversity produced by UT’s race-conscious policy are so insignificant. And as UT notes, Fisher herself conceded that the UT policy involves no numerical targets.
In our view, given the importance of diversity in higher education and the expertise that academic officials have in determining whether sufficient diversity has been attained, some measure of deference to that expertise is necessary. Further, consideration of classroom diversity in the circumstance of this case seems appropriate if the compelling interest in diversity is to receive anything but lip service. We also do not believe undue weight should be given to Texas’ top 10% policy, given its lack of flexibility in attaining diversity or other legitimate goals of admissions policy and the perverse incentives the top 10% policy entails.
Nevertheless, UT can expect skeptical questions from the conservative Justices on all of these issues. We expect hard questioning from these Justices especially concerning the deference accorded the judgments of University officials and the difficulty of establishing standards to determine whether “critical mass” has been achieved, especially if classroom diversity is to be considered, and whether continued use of race is necessary in light of the top 10% policy.
At the same time, for all the reasons enumerated by UT, we believe it would be an assault on the principles underlying stare decisis, for the Court to reach beyond these issues to overturn or limit Grutter. We hope that the Court will recognize that overruling Grutter would threaten to reverse gains in diversity thus far achieved and undermine the wide range of societal interests in diversity promoted by Grutter.
 Mr. Rosdeitcher is Senior Policy Advisor to the Brennan Center and is Of Counsel at Paul, Weiss, Rifkind, Wharton & Garrison LLP. Mr. Beha is an associate at Paul, Weiss. Mr. Rosdeitcher was one of the lawyers at Paul, Weiss who submitted an Amicus Brief on behalf of the American Bar Association in support of the University of Texas at Austin in this case. The Brennan Center also submitted an Amicus Brief in support of the University.
 438 U.S. 265, 289–91, 315–18 (1978) (Powell, J. concurring).
 539 U.S. 306 (2003).
 Parents Involved v. Seattle District No.1, 551 U.S. 701 (2007) (Roberts, C.J.) (plurality opinion).
 Id at 722–25.
 Grutter, supra, 539 U.S. at 387–391.
 Parents Involved, supra 551 U.S. at 797–98.
 78 F. 3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996).
 Fisher v. University of Texas at Austin, 631 F. 3d 213 (5th Cir. 2011).
 Id at 233.
 Id at 247.
 Id. at 247.
 Fisher v. University of Texas at Austin, 644 F. 3d 301 (5th Cir. 2011).
 The question presented is: Whether [UT’s] use of race in undergraduate admissions decisions is lawful under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003).