Excerpts
from Fisher v. University of
Texas at Austin, 570 U.S. ___ (2013).
In Grutter v. Bollinger, 539 U. S. 306 (2003), the Court upheld the use of
race as one of many “plus factors” in an admissions program that considered the
overall individual contribution of each candidate. In Gratz v. Bollinger,
539 U. S. 244 (2003), by contrast, the Court held unconstitutional Michigan’s
undergraduate admissions program, which automatically awarded points to
applicants from certain racial minorities.
In
holding a program that set aside 16 seats for minority applicants impermissible
under the Equal Protection Clause Justice Powell’s opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 305 (1978) stated
certain basic premises. First, decisions
based on race or ethnic origin by faculties and administrations of state
universities are reviewable under the Fourteenth Amendment. The principle of
equal protection admits no artificial line of a ‘two- class theory’ that permits
the recognition of special wards entitled to a degree of protection greater
than that accorded others. It is therefore irrelevant that a system of racial
preferences in admissions may seem benign. Any racial classification must meet strict scrutiny,
for when government decisions touch upon an individual’s race or ethnic
background, he is entitled to a judicial determination that the burden he is
asked to bear on that basis is precisely tailored to serve a compelling
governmental interest. Next, Justice Powell identified one compelling interest that
could justify the consideration of race: the interest in the educational
benefits that flow from a diverse student body. Redressing past discrimination
could not serve as a compelling interest, because a university’s broad mission
of education is incompatible with making the judicial, legislative, or
administrative findings of constitutional or statutory violations necessary to
justify remedial racial classification.
The
attainment of a diverse student body, by contrast, serves values beyond race
alone, including enhanced classroom dialogue and the lessening of racial isolation
and stereotypes. The academic mission of a university is a special concern of
the First Amendment. Part of the
business of a university is to provide that atmosphere which is most conducive
to speculation, experiment, and creation, and this in turn leads to the question
of who may be admitted to study.
Justice
Powell’s central point, however, was that this interest in securing diversity’s
benefits, although a permissible objective, is complex. It is not an interest
in simple ethnic diversity, in which a specified percentage of the student body
is in effect guaranteed to be members of selected ethnic groups, with the
remaining percentage an undifferentiated aggregation of students. The diversity
that furthers a compelling state interest encompasses a far broader array of
qualifications and characteristics of which racial or ethnic origin is but a
single though important element.
In Gratz v. Bollinger, 539 U. S. 244 (2003), and Grutter v. Bollinger,
539 U. S. 306 (2003), the Court endorsed the precepts stated by Justice Powell.
In Grutter, this Court reaffirmed his conclusion that obtaining the educational
benefits of student body diversity is a compelling state interest that can
justify the use of race in university admissions.
As Gratz
and Grutter observed, however, this follows only if a clear
precondition is met: The particular admissions process used for this objective
is subject to judicial review. Race may not be considered unless the admissions
process can withstand strict scrutiny. Nothing in Justice Powell’s opinion in Bakke
signaled that a university may employ whatever means it desires to achieve
the stated goal of diversity without regard to the limits imposed by our strict
scrutiny analysis. To be narrowly tailored, a race-conscious admissions program
cannot use a quota system, but instead must remain flexible enough to ensure
that each applicant is evaluated as an individual and not in a way that makes
an applicant’s race or ethnicity the defining feature of his or her application.
Strict scrutiny requires the university to demonstrate with clarity that its purpose
or interest is both constitutionally permissible and substantial, and that its
use of the classification is necessary to the accomplishment of its purpose.
Additional
guidance maybe found in this court’s broader equal protection jurisprudence which
applies in this context. Distinctions between citizens solely because of their
ancestry are by their very nature odious to a free people and therefore are
contrary to our traditions and hence constitutionally suspect. Because racial
characteristics so seldom provide a relevant basis for disparate treatment the
Equal Protection Clause demands that racial classifications be subjected to the
most rigid scrutiny.
To
implement these canons, judicial review must begin from the position that any
official action that treats a person differently on account of his race or
ethnic origin is inherently suspect. Strict scrutiny is a searching
examination, and it is the government that bears the burden to prove that the
reasons for any racial classification are clearly identified and unquestionably
legitimate.
Grutter v. Bollinger,
539 U. S. 306 (2003) made clear that racial classifications are constitutional
only if they are narrowly tailored to further compelling governmental
interests. The
attainment of a diverse student body is a constitutionally permissible goal
for an institution of higher education. Thus, under Grutter, strict scrutiny must be applied to any admissions
program using racial categories or classifications. According to Grutter, a university’s educational
judgment that such diversity is essential to its educational mission is one to
which we defer. Grutter concluded
that the decision to pursue the educational benefits that flow from student body
diversity that the University deems integral to its mission is, in substantial
measure, an academic judgment to which some, but not complete, judicial
deference is proper under Grutter.
A court, of course, should ensure that there is a reasoned, principled
explanation for the academic decision. On this point, the District Court and
Court of Appeals were correct in finding that Grutter calls for deference to the University’s conclusion based
on its experience and expertise, that a diverse student body would serve its
educational goals.
A
university is not permitted to define diversity as some specified percentage of
a particular group merely because of its race or ethnic origin. That would
amount to outright racial balancing, which is patently unconstitutional. Racial
balancing is not transformed from patently unconstitutional to a compelling state
interest simply by relabeling it racial diversity.
Once the
University has established that its goal of diversity is consistent with
strict scrutiny, however, there must still be a further judicial determination
that the admissions process meets strict scrutiny in its implementation. 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. Grutter made
clear that it is for the courts, not for university administrators, to ensure
that the means chosen to accomplish the government’s asserted purpose must be
specifically and narrowly framed to accomplish that purpose. True, a court can
take account of a university’s experience and expertise in adopting or
rejecting certain admissions processes. But, as this court said in Grutter, it remains at all times the
University’s obligation to demonstrate, and the Judiciary’s obligation to
determine, that admissions processes ensure that each applicant is evaluated
as an individual and not in a way that makes an applicant’s race or ethnicity
the defining feature of his or her application. Narrow tailoring also requires
that the reviewing court verify that it is necessary for a university to use
race to achieve the educational benefits of diversity. This involves a careful
judicial inquiry into whether a university could achieve sufficient diversity
without using racial classifications. Although narrow tailoring does not
require exhaustion of every conceivable race-neutral alternative, strict
scrutiny does require a court to examine with care, and not defer to, a
university’s serious, good faith consideration of workable race-neutral
alternatives. Consideration by the university is of course necessary, but it is
not sufficient to satisfy strict scrutiny: The reviewing court must ultimately
be satisfied that no workable race-neutral alternatives would produce the educational
benefits of diversity. If a nonracial approach could promote the substantial
interest about as well and at tolerable administrative expense, then the
university may not consider race. A plaintiff, of course, bears the burden of
placing the validity of a university’s adoption of an affirmative action plan
in issue. But strict scrutiny imposes on the university the ultimate burden of
demonstrating, before turning to racial classifications, that available,
workable race-neutral alternatives do not suffice.
Grutter v. Bollinger,
539 U. S. 306 (2003) did not hold that good faith would forgive an impermissible
consideration of race. It must be remembered that the mere recitation of a
‘benign’ or legitimate purpose for a racial classification is entitled to
little or no weight. Strict scrutiny does not permit a court to accept a
school’s assertion that its admissions process uses race in a permissible way
without a court giving close analysis to the evidence of how the process works
in practice. The higher education dynamic does not change the narrow tailoring
analysis of strict scrutiny applicable in other contexts. The analysis and
level of scrutiny applied to determine the validity of [a racial]
classification do not vary simply because the objective appears acceptable. While
the validity and importance of the objective may affect the outcome of the
analysis, the analysis itself does not change.
The Court
vacates that judgment, but fairness to the litigants and the courts that heard
the case requires that it be remanded so that the admissions process can be
considered and judged under a correct analysis. Unlike Grutter v. Bollinger,
539 U. S. 306 (2003), which was decided after trial, this case arises from
cross-motions for summary judgment. In this case, as in similar cases, in determining
whether summary judgment in favor of the University would be appropriate, the
Court of Appeals must assess whether the University has offered sufficient evidence
that would prove that its admissions program is narrowly tailored to obtain the
educational benefits of diversity. Whether this record—and not simple assurances
of good intention—is sufficient is a question for the Court of Appeals in the
first instance.
Strict
scrutiny must not be strict in theory, but fatal in fact. But the opposite is
also true. Strict scrutiny must not be strict in theory but feeble in fact. In
order for judicial review to be meaningful, a university must make a showing
that its plan is narrowly tailored to achieve the only interest that this Court
has approved in this context: the benefits of a student body diversity that encompasses
a broad array of qualifications and
characteristics of which racial or ethnic origin is but a single though important
element.
