Supreme Court Recognizes Legal Foundation of Affirmative Action

On Monday, the Supreme Court issued its highly anticipated decision in Fisher v. University of Texas at Austin, a case that challenged the use of affirmative action programs in public institutions of higher education. In a significant victory for equal opportunity, the court did not strike down the University of Texas’s admissions policy, and more importantly, it preserved the right to consider racial and ethnic diversity as a factor in admissions. However, since the Court found that the Fifth Circuit did not properly apply the legal proper standard for evaluating affirmative action programs, the case was sent back to the lower court for further consideration.

Most seats in UT’s incoming classes are automatically filled under Texas’s Top Ten Percent Law, which mandates automatic admission for Texas high school seniors in the top 10% of their class. The remainder of applicants compete for admission based on their academic and personal qualifications. In order to matriculate a “critical mass” of minority students needed to obtain the educational benefits of a diverse study body, UT enacted the policy at issue in Fisher, which was modeled on a University of Michigan policy that was upheld by the Supreme Court in Grutter v. Bollinger (2003). Under the policy, UT takes into consideration various factors included demonstrated leadership qualities, work experience, extracurricular activities, and “special circumstances.” The “special circumstances” factor takes into account such qualities as socioeconomic background, family status, and race.

The case began when Abigail Fisher, a rejected applicant, sued the UT, arguing that she was the victim of race discrimination. Fisher, who is white, argued that she was passed over for minority applicants with less impressive credentials. Based on its similarity to the policy upheld in Grutter, the university’s policy was upheld in the lower courts. But once the Supreme Court granted review, many feared that Fisher would mark the end of affirmative action in public university admissions.

While the case was being considered by the Court, the National Education Association (NEA), twenty-seven NEA state affiliates, together with People for the American Way, and a coalition of unions (including the AFL-CIO, Service Employees International Union, American Federation of Teachers, and the American Federation of State, County, and Municipal Employees) submitted an amicus brief urging the Court to uphold the UT program and reaffirm that fostering diversity in education remains a compelling governmental interest. The NEA brief highlighted the impressive body of research showing that affirmative action programs in education not only help address existing discrimination, but also plant the seed for a more just society.

“This decision leaves intact the legal framework that protects affirmative action, so we are pleased,” NEA President Dennis Van Roekel said yesterday. “And while we are disappointed that the Court did not completely affirm the University of Texas’ modest affirmative action program we are also heartened by the Court’s recognition that obtaining racially diverse classrooms can be a compelling government interest. The decision allows the conversation to continue, and our hope is that the benefits that come from racial diversity in education will become evident as institutions of higher education continue to pursue these critical programs.”

The Court’s 7-to-1 opinion, written by Justice Kennedy, recognizes that “the attainment of a diverse student body . . . serves values beyond race alone” and affirmed the principle that securing diversity’s benefits in an academic setting is a permissible objective of a university’s admissions policy. The Court also noted that the lower courts were correct in granting deference to UT’s decision that a diverse student body would serve its educational goals.

The Court found, however, that the lower court that affirmed the validly of UT’s program was too deferential in concluding that UT’s program was strictly limited—or “narrowly tailored”—to achieving the “educational benefits that flow from student body diversity.” In particular, the Court said that, when the case returns to the lower court, UT must show that it gave “serious, good faith consideration of workable race-neutral alternatives” to its affirmative action plan but that no such alternatives “would produce the educational benefits of diversity.”

The Fisher decision marks an important victory in an ongoing legal assault against equal opportunity. Most importantly, the Court reaffirmed existing precedent allowing the use of affirmative action in admissions policies.