Higher education alert | Nixon peabody LLP
JUly 18, 2014
Update on Fisher v. University of Texas—an
affirmative action win?
By David H. Tennant and Brian J. Jacek
Race-conscious admissions policies at public universities (also known as "affirmative action"
programs) have been in the headlines lately as the result of the Supreme Court handing down two
high-profile rulings against such policies. The high court did so last year in Fisher v. University of
Texas, which set aside two lower court rulings upholding the University of Texas’s (UT’s)
admissions policy, and more recently in Schuette v. Coalition to Defend Affirmative Action (April 22,
2014), which upheld a constitutional amendment in Michigan banning the use of race-based
preferences in the admissions decisions of public universities. So proponents of affirmative action
were heartened when the United States Court of Appeals for the Fifth Circuit (based in Dallas,
Texas) ruled this week in Fisher v University of Texas1—on remand from the Supreme Court—that
UT's race-conscious "holistic review" admission policy was constitutionally permissible. Supporters
of diversity in higher education hailed the Fifth Circuit's decision as affirming the right of public
schools to use race as a factor in admitting students.
While the circuit court’s decision in Fisher is a solid win for the University of Texas, it is far from
final. The decision is subject to further review in the Fifth Circuit, with the possibility that
the entire court will agree to take the case en banc, or the Supreme Court could agree to review the
matter again. Even if the decision in favor of UT’s admissions policy stands, we do not think the
decision materially enhances the ability of schools to identify the dividing line between a
permissible race-conscious admissions policy and a policy that violates the Constitution. Indeed,
the three-judge panel for the Fifth Circuit split 2–1, and the two judges who authored the majority
and dissenting opinions are both respected jurists and generally viewed as conservative in judicial
outlook. More than anything, this week’s decision illustrates just how hard it is to craft and
implement a race-conscious admission policy that will survive a constitutional challenge, and how
reviewing judges can look at the same facts and reach opposite conclusions.
As we explain below, the analysis offered by the Fifth Circuit is closely tied to the peculiar facts of
UT's admission policy. For that reason, too, the decision is not likely to provide meaningful
guidance to other public colleges and universities even if the Fifth Circuit's divided panel ruling
1
09-50822 (5th Cir. July. 15, 2014).
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remains undisturbed. Schools that are seeking to better understand the legal contours
of affirmative action are advised to study the Fifth Circuit's decision but will likely have to look
elsewhere for meaningful guidance.
UT’s admission policy
Abigail Fisher sued UT after being denied admission, alleging that UT’s race-conscious admissions
program violated the Fourteenth Amendment. Applicants to UT can be admitted in one of two
ways. Under the first—the Top Ten Percent Plan—a student who is in the top ten percent of his or
her high school graduating class is offered automatic admission to UT. Under the second—the
holistic review—a student may be admitted to UT based on the applicant’s entire application,
including but not limited to academic credentials, extracurricular activities, socioeconomic status
and race. Under this second, holistic approach, no one factor is dispositive. Fisher, who did not
graduate in the top ten percent of her high school class, argued that this second, race-conscious
approach violated the Equal Protection Clause of the Fourteenth Amendment.
What courts previously said about the policy
The district court granted summary judgment to UT, and the Fifth Circuit affirmed, holding that
precedent required that courts give deference to the university in deciding whether an admissions
program meets the compelling interest and narrowly tailored requirements of strict scrutiny. The
Supreme Court disagreed in Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013). In an
opinion by Justice Kennedy, the Court held that courts may defer to a university’s proffered
compelling interest in increasing diversity, but may not defer to a university’s determination that
its program is narrowly tailored. Critics of affirmative action heralded that decision as a win.
The Fifth Circuit’s ruling this week
But on remand, a divided panel of the Fifth Circuit held that UT’s holistic review was necessary to
complement its Top Ten Percent Plan and was narrowly tailored to achieve UT’s goal of obtaining a
“critical mass” of diverse students. In short, the Fifth Circuit held that the Top Ten Percent left “a
gap in an admissions process seeking to create the multi-dimensional diversity” that the Supreme
Court envisioned. Fisher v. University of Texas at Austin, 09-50822 (5th Cir. Jul. 15, 2014) at * 29. By
taking into account an applicant’s entire application, holistic review compelled admission of diverse
students who would otherwise not be admitted based on class rank alone. Holistic review, then,
was narrowly tailored to achieve UT’s compelling interest.
Judge Emilio Garza dissented. He believed that the majority failed to apply on remand the teachings
of Fisher and did not in fact apply the non-deferential, strict scrutiny analysis as required by the
Supreme Court. Judge Garza said the majority impermissibly deferred to UT’s own concept of how
its policies were narrowly tailored. In doing so, he stated, the court accepted UT’s reliance on its
goal of achieving “critical mass,” without actually explaining what that concept is. In short, Judge
Garza could not agree that UT’s policy was narrowly tailored to achieve its purported goal because
UT failed to adequately define that goal.
The Fifth Circuit’s decision highlights the difficulty of crafting and implementing admissions
policies that are sustainable under strict scrutiny. But the decision does little to provide universities
with the guidance they need to develop those policies. And although the decision may be viewed as
a win for proponents of affirmative action policies, the real implications of the decision are less
certain. Pending further judicial review, public universities who use race as one of many factors in
admissions policies are unlikely to find clear answers in this decision.
For more information on the content of this alert, please contact your Nixon Peabody attorney or:
— David H. Tennant at [email protected] or 585-263-1021
— Brian J. Jacek at [email protected] or 585-263-1772