Fisher v. University of Texas at Austin, 570 U.S. ___ (2013).

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.