July 10, 2013
On June 24, 2013, the U.S. Supreme Court released its long-awaited decision in Fisher v. University of Texas at Austin (2013) 2013 WL 3155220. The Supreme Court upheld the standard articulated in previous affirmative action cases and ordered the lower court to apply the correct standard when reviewing the University’s admissions policy.
Background of Affirmative Action Cases
In Regents of University of California v. Bakke (1978) 438 U.S. 265, 266 and later in Grutter v. Bollinger (2003) 539 U.S. 306, the Supreme Court articulated that a university’s use of affirmative action must meet the “strict scrutiny” standard — meaning a university’s admissions policy must be “narrowly tailored” to serve a “compelling government interest.” In the case of affirmative action, the “compelling government interest” is diversity of students in classrooms. Strict scrutiny is the most difficult standard of review a court will apply, and it is applied in several different contexts, including when race is a factor in government decision making. Under this standard, the race-based action must be narrowly tailored to further the compelling interest.
Petitioner Abigail Fisher, a white student, applied to the University of Texas at Austin and was rejected for immediate admission. Fisher filed suit against the University arguing she was a victim of racial discrimination since minority students with lower tests scores and grades were admitted. The Fifth Circuit Court of Appeals ruled in favor of the University, reasoning that Grutter required courts to give substantial deference to universities’ race-based admissions standards.
The Supreme Court held in a decision authored by Justice Kennedy, with Justice Kagan recusing herself and Justice Ginsburg dissenting, that the lower court did not properly hold the University to the strict scrutiny standard expressed in Grutter and Bakke. While deference is given to a university on whether diversity is a compelling government interest, no deference is given to a university’s “good faith consideration of workable race-neutral alternatives.” The Court ordered the Fifth Circuit to reconsider the case and determine whether the University offered sufficient evidence to prove “its admissions program is narrowly tailored to obtain the educational benefits of diversity.” This standard is not new and merely reinforces the standard articulated in Grutter.
In cases involving affirmative action policies, courts must decide whether the use of race in admissions is necessary, meaning there is no other race-neutral alternative that would create a diverse student body. Some legal scholars have claimed that while the Court’s latest ruling will not end race-based affirmative action, it will make it harder for schools to defend their race-based policies.
Fisher’s Influence on California Public Schools
Like Grutter and Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007) 551 U.S. 701, the last major Supreme Court cases addressing affirmative action, Fisher is unlikely to have much impact on California public schools. Since the passage of Proposition 209 in 1996, the California Constitution has prohibited public education institutions from affording “preferential treatment” based on race, sex, color, ethnicity, or national origin in admissions. Thus, California schools and universities are precluded from using “diversity” as a rationale for race-based admissions decisions. Despite the minimal legal significance of Fisher on admissions standards for California public schools, some argue Fisher might spark an interest in introducing legislation to overturn Proposition 209. Legislation that would have allowed public universities to “consider” race and gender in admissions to increase underrepresented minority student enrollment, without granting “preference,” was vetoed by Governor Jerry Brown in 2011. It is unclear whether proponents of affirmative action will reintroduce similar legislation.
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