In a 7-1 decision (in which Justice Elena Kagan did not participate), the U.S. Supreme Court ruled in Fisher v. University of Texas at Austin that the U.S. Court of Appeals for the Fifth Circuit applied the incorrect strict scrutiny standard in deciding that the University of Texas at Austin’s consideration of race in its undergraduate admissions process was legally permissible. Although many have been anticipating a significant adjustment of existing law regarding race-conscious admissions practices, the Supreme Court declined to overrule its previous decisions that have allowed institutions of higher education to consider race as one of several factors in seeking to achieve the educational benefits of diversity. Indeed, the Fisher decision clarified that, at least in the higher education context, schools may exercise their academic judgment to determine that achieving the educational benefits of diversity is a sufficiently compelling objective to justify the consideration of race as one of many diversity factors in conducting a holistic review of applicant files during the admissions process. The Fisher decision also emphasized, however, that institutions may only pursue such an objective using means that are narrowly tailored to meet it.

In writing for the majority, Justice Anthony Kennedy explained that it was not enough for courts to ask whether a college or university had acted in “good faith” in its consideration of race. Instead, like other racial classifications, the majority opinion in Fisher stressed that the consideration of race by colleges and universities must be reviewed under the same strict scrutiny test that applies in other contexts. The strict scrutiny test applies to public institutions and to private institutions that receive federal financial assistance. Under this test, an institution of higher education must (1) demonstrate a compelling government interest; and (2) show that the means used to achieve that interest are narrowly tailored. As a result of its decision in Fisher, the Supreme Court remanded the case to the Fifth Circuit and instructed that Court of Appeals to “assess whether the University has offered sufficient evidence [to] prove that its admissions program is narrowly tailored to meet the educational benefits of diversity.”

The University of Texas at Austin adopted the undergraduate admissions program at issue in Fisher following the Supreme Court’s 2003 decision in Grutter v. Bollinger, which held that the consideration of race in the University of Michigan’s law school admissions program satisfied strict scrutiny and therefore was constitutional. As the Court explained in Fisher, the Grutter decision “upheld the use of race as one of many ‘plus factors’ in an admissions program that considered the overall individual contribution of each candidate.” The Fisher Court also contrasted the facts at issue in Gratz v. Bollinger, the 2003 companion case to Grutter involving the University of Michigan’s undergraduate admissions program, in which the Court determined that automatically awarding a certain number of points to applicants from certain racial groups was not constitutional. Like the admissions program approved in Grutter, the University of Texas at Austin did not assign a specified number of points to applicants based upon their race, but, according to the majority, race was still a “meaningful factor.” The University of Texas at Austin is also subject to a law known as the “Top Ten Percent Law,” which guarantees admission to any public university in Texas to all Texas high school students who are in the top 10% of their high school class. A key issue in Fisher was how the Supreme Court would evaluate the University of Texas at Austin’s consideration of race given that, unlike the University of Michigan, the University of Texas is subject to a race-neutral statute like the Top Ten Percent Law, which guarantees admission to certain students without regard to their race. The Supreme Court left this issue unanswered in remanding the Fisher case to the Fifth Circuit for further proceedings.

Significantly, the majority opinion in Fisher confirmed many of the key principles that underlie the Supreme Court’s previous decisions in Grutter and Regents of University of California v. Bakke, including the fact that “obtaining the educational benefits of student body diversity is a compelling state interest that can justify the use of race in university admissions.” The Fisher Court emphasized, however, that race may be considered only if the admissions program under review can meet the constitutional test known as “strict scrutiny.” Under that test, a college or university must demonstrate both that its “purpose or interest is both constitutionally permissible and substantial, and that its use of [race] is necessary . . . . to the accomplishment of its purpose.”

Although the Supreme Court confirmed that higher education institutions are entitled to deference with regard to the importance of the educational benefits of having a diverse student body, the majority in Fisher stressed that institutions of higher education face a substantial burden in showing that their consideration of race in the admissions process satisfies the strict scrutiny test. The Supreme Court rejected the standard used by the Fifth Circuit; namely, whether the University’s use of race as a factor in the admissions process was made “in good faith.” Indeed, even if an institution decides that diversity is a sufficiently important interest, there still must be “a further judicial determination” that the means used to achieve diversity are “narrowly tailored” to meet that objective. In more practical terms, this means that admissions standards must be designed to ensure that each applicant is evaluated on an individual basis, rather than allowing an applicant’s race or ethnicity to be the “defining feature” of his or her application. The judicial review required by Fisher also means that the courts must assess whether it is “necessary” for an institution to use race to attain the educational benefits of diversity or whether such benefits could be achieved without considering race. As the Supreme Court explained, strict scrutiny does not allow courts simply to defer to a college or university’s “serious, good faith consideration of workable race-neutral alternatives.” Rather, courts must “examine with care” race-neutral alternatives in determining whether consideration of race is actually necessary.

Thus, the Fisher Court has affirmed that colleges and universities should be afforded some level of deference in determining whether the educational benefits of diversity are an objective worth pursuing, while suggesting that those same institutions will be afforded less deference in assessing in whether the means used to achieve that objective are narrowly tailored. Indeed, the Court specifically stated that “[t]he higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other contexts.” In the end, the Court stressed that the burden rests on institutions to demonstrate that such race-neutral alternatives are not adequate to achieve the educational benefits of diversity. In so doing, the Fisher Court stressed that institutions of higher education will not be afforded deference with regard to the issue of whether the means used to achieve diversity are narrowly tailored to meet that objective.

In deciding Fisher, the Supreme Court made no mention of its 2007 decision in Parents Involved In Community Schools v. Seattle School District No. 1, in which the Supreme Court ruled that the compelling interest in advancing the educational benefits of diversity recognized in Grutter was limited to the higher education context and, therefore, did not apply to the consideration of race by elementary and secondary schools. While the Seattle School District decision limited the permissible uses of race in the K-12 context, however, Justice Kennedy’s majority opinion in Fisher echoes his concurring opinion in the Seattle School District case with regard to the issue of narrow tailoring and stresses that race neutrality should be part of the strict scrutiny analysis, which applies to both K-12 and higher education.

What remains to be seen is precisely how far the University of Texas at Austin and other institutions of higher education will have to go to demonstrate that race-neutral alternatives or other means are not adequate to permit colleges and universities to achieve a sufficient level of diversity. With Justices Thomas and Scalia concurring in the result but also indicating that they would overturn Grutter if given the opportunity, the extent to which their views could influence any subsequent decision of the Supreme Court in Fisher remains unclear.  Regardless of whether institutions are governed by a law comparable to Texas’s “Top Ten Percent Law,” both public and private colleges and universities should take this opportunity to ensure that any consideration of race in their admissions processes are consistent with the admissions policies at issue in Bakke and Grutter and to continue to assess whether race-neutral alternatives would allow them to meet their objectives.