On June 23, 2016, the Supreme Court released its long-anticipated decision in Fisher v. University of Texas (Fisher II). In a 4-3 decision, the Court reaffirmed the principles it has embraced for some decades now, finding that “narrowly tailored” programs that take race into account in university admissions do not violate the U.S. Constitution where they serve the compelling purpose of promoting diversity in higher education. The decision affirms that the University of Oregon may, with proper analysis and justification, engage in carefully designed programs that rely on race and ethnicity to promote diversity on our campus. The Court’s opinion provides important guidance to universities with respect to our duty to examine our practices and ensure that race plays a role in our decisions only when race-neutral alternatives are not reasonably available to achieve the objective of racial and ethnic diversity.
This decision is the second time in the past 3 years the Court has reviewed UT’s affirmative action policies. In the decision it reached in 2013, the Court re-affirmed the position it took in 2003, when evaluating the University of Michigan’s affirmative action programs, that diversity in institutions of higher education was a compelling interest that could justify narrowly tailored race-conscious programs. In the 2013 decision in Fisher I, the Court sent the case back to the lower courts for an examination of whether the University of Texas had established sufficiently that race-neutral programs were inadequate to achieve the goal of racial and ethnic diversity. The lower courts found that Texas had met this burden, and the Supreme Court in Fisher II validated that finding.
The most significant aspect of the Court’s ruling in Fisher II is its validation of the constitutional principal that has been the foundation of affirmative action programs in higher education since the Court first addressed the issue in 1978 in Regents of the University of California v. Bakke: there the Court held that diversity in institutions of higher education could be deemed a "compelling interest" justifying race-conscious decisionmaking, provided the programs in place were "narrowly tailored" to achieve that goal. Bakke made it clear that rigid quotas or separate admissions processes were not "narrowly tailored," but it left the door open for universities to consider race/ethnicity as a factor in decisions over university admission. This principle was re-affirmed in 2003 when the Supreme Court decided two cases arising out of the University of Michigan, and again in 2013 in Fisher I. While there was speculation that Fisher II might be an opportunity for the Court to reverse these decisions, that was not the result.
While the Court has left standing the ability of universities to use affirmative action in admissions programs (and, one presumes, in other aspects of student recruitment and retention, such as scholarship programs), it has made increasingly clear that each institution that embarks on a race-conscious program is required to show that such a program is necessary – that the institution has made an explicit determination that racial and ethnic diversity provides benefits to the institution and to society that the university deems worthy of pursuing – and that a race-neutral program would not achieve the goals sought. "A university . . . bears the burden of proving a 'nonracial approach' would not promote its interest in the educational benefits of diversity 'about as well and at tolerable administrative expense.'"
In other words, the doors are not wide open for the use of race-conscious programs in university admissions. Rather, a university must rigorously examine whether such programs are required in order to justify their enactment as well as their persistence:
"Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the university values. Through regular evaluation of data and consideration of student experience, the university must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest. The university’s examination of the data it has acquired in the years since petitioner’s application, for these reasons, must proceed with full respect for the constraints imposed by the Equal Protection Clause. The type of data collected, and the manner in which it is considered, will have a significant bearing on how the university must shape its admissions policy to satisfy strict scrutiny in the years to come."
The Supreme Court has thus made it clear that the “narrow tailoring” it has previously required in order to withstand constitutional scrutiny requires institution-specific inquiry and a factual record demonstrating that racial and ethnic diversity cannot be achieved without paying some overt attention to race and ethnicity. The conclusion remains, then that the University of Oregon may continue to engage in some race-conscious programs so long as we can establish that we have determined that our educational mission requires racial and ethnic diversity and that race-neutral programs cannot, alone, help us to achieve that diversity.
The Office of the General Counsel looks forward to working with its campus clients as they work to further the goals of diversity and inclusion we have adopted.
Key Takeaways from the Supreme Court’s Decision:
- Diversity in institutions of higher education may be deemed a “compelling interest” justifying race-conscious decisionmaking, provided the programs in place are “narrowly tailored” to achieve that goal.”
- Institutions that implement race-conscious programs must show that the program is necessary by:
- Explicitly determining that racial and ethnic diversity provides benefits to the institution and to society that the university deems worthy of pursuing, and
- Demonstrating that a race-neutral program would not achieve the goals sought.
Impact on the University of Oregon:
The University of Oregon may continue to engage in some race-conscious programs, as long as the university can establish that it has determined that its educational mission requires racial and ethnic diversity and that race-neutral programs alone do not achieve its diversity objectives.
- By Kevin S. Reed, Vice President and General Counsel