Justice Kennedy, in an opinion joined by Chief Justice Roberts and Justices Alito, Scalia, Thomas, Breyer, and Sotomayor, wrote that public universities’ race-conscious admissions policies are constitutionally permissible and acknowledged that “the educational benefits that flow from a diverse student body” constitute a compelling government interest. Race may be a factor in admissions when “no workable race-neutral alternatives would produce the educational benefits of diversity.” Fisher v. University of Texas at Austin, No. 11-345, Supreme Court of the United States (June 24, 2013).

However, holding that the Fifth Circuit Court of Appeals applied the wrong level of judicial scrutiny when it upheld the University of Texas at Austin’s race-conscious admissions procedure, the Court vacated the Fifth Circuit’s decision and remanded the case for a determination of whether the university’s admissions process is narrowly tailored to further the state’s compelling interest in a diverse student body.

On remand, the Fifth Circuit must correctly apply the 2003 Supreme Court case, Grutter v. Bollinger, to “assess whether the University has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity” and ensures that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The remand requires strict scrutiny of any part of the admissions program that uses racial categories or classifications to verify both that it is “necessary” to use race to achieve the educational benefits of diversity and that no race-neutral alternatives would produce the benefits of diversity.

Lisa Karen Atkins, co-leader of the Ogletree Deakins Higher Education Practice Group and of counsel in the firm’s Birmingham office, emphasizes that the Fisher decision requires precise evaluation of the way race is used in the process, even though the goal of diversity is permissible. “The university must prove that the means chosen to attain diversity are narrowly tailored to that goal, and on this point, the university receives no deference.” Atkins, who previously served as general counsel for a university and associate general counsel for one of the nation’s largest higher education systems, warns that these standards apply to public institutions under 42 U.S.C. § 1983, and may apply to private institutions under Title VI of the Civil Rights Act of 1964. Under Title VI, private schools receiving federal funds must follow federal laws against racial discrimination.

Justices Scalia and Thomas concurred but indicated that they would overrule Grutter. Justice Ginsburg dissented and would have upheld the Fifth Circuit decision. Justice Kagan took no part in the decision.

For more details on the future of college admission after Fisher, see “Reactions to Fisher: Grutter Survives, for now—But What About Title VI?” on the Ogletree Deakins blog.

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