Fisher v. University of Texas, 570 US ___, 133 S. Ct. 2411 (2013).

In this case, the U.S. Supreme Court generally upheld the constitutionally of affirmative action plans as implemented under the Court’s previous decisions. The Court generally reaffirmed its prior holdings that found that diversity in educational institutions was a compelling state interest that could necessitate the use of an affirmative action program. However, the Court returned the case to the appeals court finding that the lower court had applied the wrong standard of proof in determining whether the affirmative action plan was necessary to attain the goal of diversity.

The case arose out of the University of Texas’ admissions plan. The UT system had previously determined that diversity was essential to its educational mission. In an attempt to attain diversity, the UT system replaced an earlier admissions plan which had explicitly considered race with a “Personal Achievement Index” (PAI). The PAI is produced through a holistic review of applications intended to identify students whose achievements are not accurately reflected by their test scores and grades alone. The PAI includes an evaluation of required written essays and a “personal achievement score,” which is made up of factors such as socio-economic status, languages at home, and whether the student lives in a single-parent household. In addition, the state legislature and the university adopted a variety of other initiatives to increase diversity.

The AAUP filed an amicus brief with the Fifth Circuit in support of the UT system. Specifically, the brief focused on the benefits of a diverse student body and pointed out that the University of Texas specifically modeled its admissions policy on a similar policy endorsed by the Supreme Court. The brief also argued that academic freedom depends on the right of universities to freely choose who is admitted to their communities because universities have the educational expertise to design and fulfill their own academic missions.

Relying on the Supreme Court’s 2003 decision in Grutter v. Bollinger, 539 U.S. 306 (2003), the Fifth Circuit ruled in favor of the university, affirming that the university has “a compelling interest in obtaining the educational benefits of diversity.” In doing so, the Fifth Circuit also held that deference should be granted to the university’s educational judgment that diversity is essential to its educational mission, and that deference should be granted to the university’s decision to use race as a factor to attain this diversity.

The case was appealed to the Supreme Court. In August 2012, the AAUP again joined in a coalition amicus brief submitted to the Supreme Court and drafted by the American Council on Education. On June 24, 2013 the Supreme Court ruled 7 to 1 to remand the case because the lower court did not apply the proper standard of proof when evaluating the claims. In particular, the Court found that the Fifth Circuit erred in granting deference to the University’s decision to use race as a factor to attain diversity. As the Court explained, the “University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference.” Slip op. at 10.

However, most importantly, the Court did NOT rule that affirmative action was inherently unconstitutional, as many had feared. Instead, the Court primarily reaffirmed its 2003 holding in Grutter, which has been the law of the land for the last 10 years.  The Court also reaffirmed some of the fundamental holdings of Grutter. For example the Court reiterated that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Slip op. at 7 (Quoting Grutter at 325.)  Similarly, the Court found that it was appropriate to accord universities deference on whether “such diversity is essential to its educational mission.”  Slip op. at 9. 

While this decision does not change the legal standard, it may embolden those challenging these policies or may prompt reconsideration of their use by some higher education institutions. Thus the decision may provide political fodder to some, but it should not significantly alter the legal standards applicable in affirmative action cases.

Amicus Brief Topics: