The Supreme Court’s ruling in Fisher v. University of Texas at Austin provides little guidance for admissions officers looking to reassess their own affirmative action policies.
The Supreme Court issued a 7-1 decision on Monday, June 24 directing the 5th Circuit Court of Appeals to reexamine the case, saying it applied the incorrect standard of review and therefore the case shouldn’t have even reached a higher court. It did not, however, comment on the merits of UT Austin’s admissions policy.
“It left a number of us sort of shaking our heads a little bit about what we actually now know and what guidance we were given,” says Michael Reilly, executive director of the American Association of Collegiate Registrars and Admissions Officers.
In 2008, Abigail Fisher, who is white, was denied undergraduate admission into the University of Texas at Austin, and filed a lawsuit alleging that the school had discriminated against her on the basis of her race. Many commentators believe that Fisher wouldn't have been accepted to the school anyway, regardless of her reverse discrimination claim. She was not in the top 10 percent of her high school class, which is a guarantee of admittance in Texas, regardless of race, under Texas House Bill 588. Eighty-one percent of the UT Austin freshman class of 2008 were admitted under this bill.
The decision reiterates the need for courts to apply strict scrutiny for race-based actions, says Reilly. Strict scrutiny is the most stringent standard of judicial review used by U.S. courts—the defendant must establish there is no other reasonable alternative for the means being used to carry out its objective.
To prove strict scrutiny in this case, UT Austin will need to show that there is no reasonable alternative to the institution’s plan for achieving diversity, and that any admissions policies regarding race are very closely related to achieving this goal.The higher ed community became familiar with strict scrutiny with the landmark Grutter v. Bollinger case of 2003, wherein the Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School.
Reilly says the language in the Grutter decision makes it difficult to determine just how many alternatives to affirmative action must be deployed before determining that they aren’t achieving a school’s diversity objectives.
“What the case did leave us with is that this decision did not at all challenge the notion that diversity is a compelling interest in higher education,” he says. “The decision says ‘you can determine the end,’ but it’s the court that clearly has to evaluate whether we adequately constructed the means to that end.”