June 25 2013
Vicki E. Alger
In a 7-1 ruling diversity in higher education was upheld as a compelling state interest, but “a diverse student body serves values beyond race alone” (p. 6). Because racial distinctions are “odious to a free people” (p. 8), universities’ racially based admissions policies must be subject to strict scrutiny to assure they meet clearly specified diversity goals.
This point has university admissions officers at UT—and nationwide—quaking.
Writing for the majority Justice Anthony Kennedy found that prior to adopting a race-based admissions policy UT's "entering class was 4.5 percent African-American and 16.9 percent Hispanic.” The following year, in 1996 when a race-based policy was adopted, “the University’s entering freshman class was 4.1 percent African-American and 14.5 percent Hispanic.” (p. 3)
American postsecondary institutions are under intensifying scrutiny to demonstrate results such as higher degree-completions rates, lower costs, and better ensuring students who do graduate are actually prepared to enter the workforce. Now they will have to demonstrate why racial admissions quotas are necessary and whether they work.
Post-Fisher reviewing courts will be required to: 1) make universities prove that using race is necessary “to achieve the educational benefits of diversity;” 2) make universities show that race-neutral alternatives would not work; and 3) the reviewing courts cannot simply “defer to a university’s ‘serious, good faith consideration of workable race-neutral alternatives.’” (p. 10)
Having to demonstrate that racially-based diversity plans are necessary and actually promote, well, diversity could be a real challenge. As for eliminating race-based admissions altogether, the Wall Street Journal reported:
When granted in February 2012, the case was seen as an opportunity for the court's conservative majority to curtail affirmative action in admissions sharply or eliminate it. Arguments in October suggested the justices might be ready to do so. But Justice Kennedy apparently was unwilling to join four other conservatives in such a dramatic move. Rather than splinter the court over such a socially fraught issue, the justices decided to back a narrow decision that leaves the fate of affirmative action to a future case.
The ruling returned the case to the Fifth Circuit U.S. Court of Appeals, which earlier ruled in favor of UT but now must reconsider the case with the stricter level of scrutiny set by the Supreme Court ruling.
Jennifer Gratz, who successfully sued the University of Michigan for its race-based admissions policies, told the Wisconsin Reporter:
Next year is the 50th anniversary of the 1964 Civil Rights Act, the promise of that was supposed to be a color-blind government. We’re not even anywhere close to that right now…New policies are being developed in race-conscious decision-making.
As for the Fisher decision, Gratz was optimistic that it is “a reminder that the court barely tolerates race preferences,” and she urged attorneys to be bold in fighting race-based admissions policies.