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Affirmative Action by State University Requires Strict Scrutiny and No Workable Race-Neutral Alternatives

Submitted By Firm: Holland & Hart LLP

Contact(s): Bradley T. Cave, Judith A. Biggs, Roger Y. Tsai, Scott E. Randolph

Author(s):

Jude Biggs

Date Published: 6/26/2013

Article Type: Legal Update

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In a highly anticipated opinion regarding the future of affirmative action, the U.S. Supreme Court ruled that to avoid violating the Equal Protection Clause, the University of Texas' consideration of race in its admissions process must meet a strict scrutiny standard where its affirmative action efforts are narrowly tailored to meet its diversity goal. Fisher v. University of Texas at Austin, No. 11-345 (U.S. June 24, 2013). Because the Fifth Circuit Court of Appeals gave the University substantial deference in deciding whether its affirmative action plan was narrowly tailored to meet its stated goal, the Supreme Court vacated the lower court's decision in favor of the University and sent the case back to the lower court with instructions to apply the tougher strict scrutiny standard.

Rejected Caucasian Applicant Alleges School Violated Constitution by Considering Race

In 2008, Fisher applied for admission to the University of Texas at Austin. Fisher, who is white, was denied admission. For years, the University had considered race as one of various factors in its undergraduate admissions process. Under the affirmative action plan in place when Fisher applied, the University remained committed to increasing racial minority enrollment on campus but did not assign a numerical value based on race for each applicant. Instead, the University included an applicant's race as one of numerous components that made up the applicant's Personal Achievement Index. When Fisher was rejected, she sued the University and various school officials alleging that the University violated the U.S. Constitution's Equal Protection Clause by considering race.

Affirmative Action Survives, But Is Narrowed

The federal district court and the Fifth Circuit appellate court upheld the University's admissions plan. The Fifth Circuit, however, gave substantial deference to the University, both in the definition of its compelling interest in creating diversity in its student body and in deciding whether its affirmative action plan was narrowly tailored to meet its goal. When the Supreme Court agreed to hear this case, supporters of affirmative action worried that the more conservative court would rule that consideration of race under affirmative action programs was unconstitutional.

The Fisher decision, however, does not actually decide the constitutionality issue but instead defines the standard by which courts must evaluate a program that considers race as a factor. The Court explained that the University must meet the demanding burden of strict scrutiny and remanded the case to the Fifth Circuit to analyze whether the University has offered sufficient evidence to prove that its admissions policy meets that scrutiny. The Court stated that "the reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."

Justice Thomas: "Use of Race is Categorically Prohibited"

Justice Clarence Thomas joined in the majority's decision, agreeing that strict scrutiny should apply to the University's use of race in its admission program. Writing a separate concurring opinion, however, he went further, stating that he would hold that a state's use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause. Justice Thomas would overrule the 2003 Supreme Court decision in Grutter v. Bollinger, which upheld the use of race as one of many "plus factors" in an admissions program, and abolish the use of race as a factor in affording educational opportunities. He finds that there is no compelling interest that could justify what he calls racial discrimination. He states that there is no doubt that the University's discrimination injures white and Asian applicants who are denied admission because of their race, but he also believes that those who are admitted under the "discriminatory admissions program" suffer even more harm, stamping them with a "badge of inferiority."

Justice Thomas' views differ from those of retired Justice Sandra Day O'Connor, who wrote in 2003 in Grutter, that "classroom discussion is livelier, more spirited, and simply more enlightening and interesting" when students are exposed to the "greatest possible variety of backgrounds." Justice O'Connor also stated that the Court expected that after 25 more years, the use of racial preferences would no longer be needed. Today, some might say American universities have reached the point when affirmative action is no longer needed; others, however, do not believe the United States has achieved the promise of true equality.

Whether Justice Thomas' view is adopted or whether Justice O'Connor's views remain in force in the future – at least for awhile – remains to be seen.

Will Fisher Be Revisited Again?

The Fifth Circuit now must apply the strict scrutiny standard to the evidence provided by the University of Texas to determine whether its consideration of race meets Equal Protection muster. No matter the outcome, it is likely the "losing" party will seek review of that decision by the U.S. Supreme Court. We know how Justice Thomas will rule, but the question remains, will enough other justices join him to throw out any consideration of race in state affirmative action programs?

Private Employers Not Bound by This Decision

Because the Equal Protection clause applies only to state actors (providing that no state shall deny to any person the equal protection of the laws), the analysis of whether an affirmative action program violates the Equal Protection clause does not apply to private companies or organizations. That said, there could be a spillover effect. Generally, discrimination in the workplace is governed by Title VII and analogous state laws. It is unclear whether individuals who feel they have suffered reverse discrimination by a private employer's affirmative action or diversity efforts will leverage the narrowing scope of affirmative action in the public sector. It is likely private sector litigants will point to Justice Thomas' concurring opinion to try to abolish any consideration of race in the employment context as discriminatory, and others will point to Justice O'Connor's rationale for affirmative action. So stay tuned!

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