Monday, June 24, 2013

The Supreme Court on University of Texas at Austin's Affirmative Action Program

Fisher v. University of Texas Austin:  Supreme Court Sends Affirmative Action at the University of Texas Back to Lower Court for Strict Scrutiny

In a 7-1 decision, the U.S. Supreme Court today affirmed the use of race by colleges and universities as part of the admissions process in order to advance a state's compelling interest in ensuring a diverse student body.   But that's not the end of the story.

The Court vacated and remanded the earlier decision by the U.S. Court of Appeals, 5th Circuit, holding that the lower court did not scrutinize adequately the University of Texas Austin inclusion of race in its admissions process.  This means the case now goes back to the lower court for reconsideration using what is called the strict scrutiny standard, which the Supreme Court is saying was not applied in the earlier 5th Circuit ruling.

Before discussing strict scrutiny, a quick review of the case is in order.  Abigail Fisher is a white woman who claims she was denied admission to the University of Texas due to a race-conscious admission policy that violated her constitutional rights guaranteed by the Fourteenth Amendment. Fisher was not in the top ten percent of her high school graduating class (which would have guaranteed her admission based on academic criteria alone), so she was placed in an admission pool that took other factors into account, including race.  Ultimately, the university rejected her application.

Federal courts use three levels of scrutiny when considering whether acts and policies of the government adhere to the U.S. Constitution.  The lowest form of scrutiny is called rational basis, which means that the courts find that the government acted reasonably and not in an arbitrary manner when enacting the law or policy in question. 

Next, is heightened scrutiny, which is a standard that has been used when ruling on issues related to gender discrimination.  Under heightened scrutiny, governments must be able to demonstrate that sex-based laws and policies must serve important governmental objectives and are substantially related to the achievement of these objectives.  

We are awaiting important decisions this week on California Proposition 8's ban on same sex marriage (Hollingsworth v. Perry) and the federal government's Defense of Marriage Act (United States v. Windsor), which could turn on the Supreme Court's application of the heightened scrutiny standard.

Finally, there is strict scrutiny, which the Supreme Court is contending in this ruling must be applied in the lower court consideration of the University of Texas at Austin's admissions process.  Under strict scrutiny the government has the burden to prove that its law or policy is necessary to achieve a compelling state interest.  In other words, under strict scrutiny the burden shifts to assume that the law or policy in question is actually unconstitutional unless the government can demonstrate that the issue in question is narrowly designed to meet the compelling state interest the government is attempting to advance.   The Supreme Court has previously ruled that race-based policies create what it has termed suspect classifications that are presumed impermissible under the Constitution unless the government is advancing an interest that can survive strict scrutiny.

In his decision in this case, Justice Anthony Kennedy, wrote the "university must prove that the means chosen" to attain diversity "are narrowly tailored to that goal," adding that the highest level of legal standard must be met before institutions use diversity programs.

"Strict scrutiny [of the policy] imposes on the university the ultimate burden of demonstrating, before turning to racial classification, that available, workable race-neutral alternatives do not suffice."

For some different perspectives on this case, including who can claim victory Ms. Fisher or the University of Texas, see the following:

NPR "The Two Way" Blog
Supreme Court: Race Still Matters (, Sally Kohn)

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