In a 7-1 ruling on affirmative action in higher education that should perk up federal contractors’ ears, the Supreme Court showed that it remains skeptical about this practice but will permit it if it is narrowly tailored to survive strict-scrutiny analysis. (Justice Elena Kagan took no part in deciding the case. Justices Antonin Scalia and Clarence Thomas concurred. Justice Ruth Bader Ginsburg dissented.)
The court could have used the case to make broad pronouncements well beyond state universities and state actors but instead chose to allow affirmative action when race is considered under the auspices of affirmative action and diversity, Joshua Roffman, an attorney at Littler Mendelson in Washington, D.C., said in a June 24, 2013, interview.
“We are pleased that the court chose to affirm that there is a place for race in university admissions,” said NAACP President and CEO Benjamin Todd Jealous. “There is a need and a benefit for our nation to ensure all students get a close look and a fair shot. We remain optimistic that colleges and universities will continue to act to keep doors open to students of all backgrounds.”
The Supreme Court’s ruling sends the case, Fisher v. University of Texas at Austin, No. 11-345 (U.S. 2013), back to the 5th U.S. Circuit Court of Appeals to examine the university’s admissions process under a strict-scrutiny analysis, which the lower court had failed to do. “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,” the Supreme Court said.
Kim Keenan, general counsel at the NAACP, added: “Given that the University of Texas’ policy can be used to admit white students for purposes of diversity, we are confident that the 5th Circuit will uphold the policy. Diversity is an opportunity for all students to obtain an education that will prepare them for how to interact and compete with anyone, anywhere in the world.”
Prospective Student’s Claims
Abigail Noel Fisher, who is white, challenged the University of Texas at Austin’s method for selecting undergrads, claiming that its use of race in the admissions process violated the Equal Protection Clause of the 14th Amendment.
The court noted that in 2004 the university began considering race as a “plus factor” in an admissions program that considered the overall individual contribution of each candidate. The university was not satisfied with the diversity of its students after the Top 10 Percent Law was enacted. This law grants to all students in the top 10 percent of their class at Texas high schools that meet certain standards automatic admission to any public state college. But even after the law was implemented, the university found that there was not a “critical mass” of minority students and that, to remedy the deficiency, it needed to give explicit consideration to race in the undergraduate admissions program. Before the law was enacted, 4.5 percent of entering students were black and 16.9 percent Hispanic. After the law, only 4.1 percent of students were black and just 14.5 percent Hispanic.
A district court granted summary judgment to the university, and the 5th Circuit affirmed the decision, ruling that courts had to give substantial deference to the university in the definition of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal.
Supreme Court Reversal
The Supreme Court reversed the lower court’s ruling, in an opinion written by Justice Anthony Kennedy. “The government bears the burden to prove that the reasons for any racial classification are clearly identified and unquestionably legitimate,” the court stated.
So, the university must show that “the means chosen by the university to attain diversity are narrowly tailored to that goal.”
Narrow tailoring does not mean the university must exhaust every conceivable race-neutral alternative, the court noted. But it does require courts to “examine with care, and not defer to, a university’s serious, good-faith consideration of workable race-neutral alternatives.”
Ultimately, the reviewing court must be satisfied that “no workable race-neutral alternatives would produce the educational benefits of diversity.”
Good intentions alone are not enough, the court emphasized. “Whether this record—and not simple assurances of good intention—is sufficient is a question for the court of appeals in the first instance.”
Affirmative Action Survives
The Supreme Court “punted” the case back to the 5th Circuit, Darrell Gay, an attorney at Arent Fox in New York, told SHRM Online. Even so, the Supreme Court put private-sector employers that receive federal funds, as well as public universities and employers, on notice that it “still values affirmative action.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.