Fisher v. University of Texas at Austin: Grutter (not) revisited.

• Author: Purdy, R. Lawrence

1. INTRODUCTION

   The Supreme Court of the United States' widely anticipated decision in Fisher v. University of Texas at Austin (1) proved to be a disappointment to interested parties on both sides of this still-simmering question: does the consideration of race as a factor in university admissions--for the purpose of achieving the alleged educational benefits of a diverse student body--violate the Equal Protection Clause of the Fourteenth Amendment?

   Following a historic series of decisions, which began with the Supreme Court's 1954 decision in Brown v. Board of Education (2) unanimously adopting the bedrock principle that "racial discrimination in public education is unconstitutional," (3) no Court upheld the use of race in university admissions for any purpose, much less for an admittedly non-remedial (4) purpose, until the 2003 decision in Grutter v. Bollinger. (5) In Grutter, the Court upheld the University of Michigan's heavy use of racial preferences in its law school admissions program based on the university's claimed interest in "diversity." (6) Because the University of Texas at Austin (UT) adopted a "holistic" admissions program modeled after the program approved in Grutter, (7) Fisher provided the Court with a rare opportunity to revisit Grutter and either reaffirm its principal holding (8) or overrule, in whole or in part, what many view as Grutter's remarkable deviation from previous Equal Protection jurisprudence. (9) Alas, the Court, in its brief opinion, (10) did neither.

   What follows is a description of UT's race-conscious undergraduate admissions policy, which was at issue in Fisher (and which the parties and the courts concede is all but identical to the policy upheld in Grutter). This is followed by a brief description of the procedural posture of the case and an analysis of the Supreme Court's decision. Finally, this Article argues that Grutter (and, by default, Fisher) represents a dramatic deviation from--and, in effect, a reversal of--the bedrock principle established in Brown. Left unanswered, of course, is whether our nation's highest court will ever reassert that the principle established in Brown governs the use of race--and forbids its use in a discriminatory way--when it comes to public education, particularly in the context of university admissions.

2. THE CONTROVERSY IN FISHER

   A. UT's Race-Conscious Program

   Shortly after the Supreme Court's decision in Grutter, UT adopted an admissions plan virtually identical to the plan approved in that case. (11) This plan explicitly considers race as a factor in admissions. (12) Under UT's program, an applicant is admitted based on a combination of her Academic Index (AI) and Personal Achievement Index (PAI) scores, (13) with "race" added to the eventual number assigned to each applicant's PAI score. (14) Once applications have been scored, they are plotted on a grid with the Al score on the x-axis and the PAI score on the y-axis. (15) "On that grid [applicants] are assigned to so-called cells based on their individual scores. All [applicants] in the cells falling above a certain line are admitted. All [applicants] below that line are not." (16) As every court reviewing the policy conceded, the manner in which race is "scored" can make a difference in whether an applicant is admitted or rejected. (17)

   The Grutter-like plan was a supplement to a measure known as the "Top Ten Percent Law," which "grants automatic admission to any public state college, including the University, to all students in the top 10% of their class at high schools in Texas that comply with certain standards." (18) In recent years, the vast majority (in excess of eighty percent in 2008) of the Texas-resident enrollees at UT have been admitted through the "Top Ten Percent Law." (19) Thus, fewer than twenty percent of the enrollees each year are subjected to UT's Grutter-like plan. (20)

   B. Procedural History

   On April 7, 2008, Petitioner Abigail Fisher filed suit against UT in the U.S. District Court for the Western District of Texas, arguing that the university's refusal to offer her admission was due to her skin color. (21) Ten days later, on April 17, 2008, she was joined by fellow plaintiff Rachel Michalewicz (22) (who later dropped out of the lawsuit before it reached the Supreme Court). The students' original lawsuit was dismissed by the district court on cross-motions for summary judgment. (23) The Fifth Circuit Court of Appeals affirmed the district court's judgment. (24) However, the Supreme Court reversed, stating:

   The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University's good faith in its use of racial classifications and affirming the grant of summary judgment on that basis. The Court vacates that judgment ... [and remands the case for further proceedings] so that the admissions process can be considered under a correct analysis.... [I]n determining whether summary judgment in favor of the University would be appropriate, the Court of Appeals must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity. Whether this record--and not "simple ... assurances of good intention"--is sufficient is a question for the Court of Appeals in the first instance. (25) The Court's directive notwithstanding, it is difficult to imagine that the Court of Appeals will--much less can--do anything but reverse the district court's original grant of summary judgment in favor of UT and remand the case for a full trial on the merits. (26) Indeed, Fisher seems to anticipate just such a process. (27)

3. WHAT, IF ANYTHING, DID FISHER DECIDE?

   While the Court in Fisher refused to reconsider whether race should ever be a factor in university admissions, the decision did take issue with the rather straightforward manner in which the lower courts applied Grutter. (28) Indeed, without explicitly saying so, the Court appears to subtly alter Grutter itself, particularly with regard to the "deference" and "good faith" presumptions accorded to universities. (29)

   Writing for the Court in Fisher, Associate Justice Anthony Kennedy began by suggesting that the broad question of whether race should ever be a factor in admissions was the question facing the Court. (30) However, his next sentence outlined a more circumscribed issue: "The parties asked the Court to review whether the judgment below [in the U.S. Court of Appeals for the Fifth Circuit] was consistent with ... Grutter[.]" (31)

   The Court's decision to vacate the lower court's decision and remand for further proceedings rested almost entirely on the degree of deference that both the district court and the Fifth Circuit extended to UT when assessing the university's need to employ a Grutter-like admissions program. (32) As the Court explained:

   [The Court of Appeals] "presume[d] the University acted in good faith and thus concluded that "the narrow-tailoring inquiry--like the compelling interest inquiry--is undertaken with a degree of deference to the University]." Because "the efforts of the University have been studied, serious, and of high purpose," the [Fifth Circuit] held that the use of race in the admissions program fell within "a constitutionally protected zone of discretion." (33) Allegedly contrasting the discretion and deference afforded to UT by the Fifth Circuit with what Grutter arguably demanded, the Court in Fisher observed:

   [T]he District Court and the Court of Appeals were correct in finding that Grutter calls for deference to [UT's] conclusion ... that a diverse student body would serve its educational goals. .... [But] [o]nce the University has established that its goal of diversity is consistent with strict scrutiny [(34)] ... there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. (35) Yet the discretion and deference extended to UT by the Fifth Circuit did not appear to differ materially from the broad deference afforded to the University of Michigan Law School in Grutter. (36) It is difficult to imagine that the lower courts in Fisher could have afforded UT a higher degree of deference than that extended to the law school in Grutter, both as to the law school's assertion of a "compelling interest" in enrolling a "diverse student body, and as to the means chosen by the law school to attain the "critical mass" of minority students believed necessary to achieve that goal.

   In fact, it was on these latter two points--the "means chosen by [the law school in Grutter*]" and the actual implementation of the school's program (37) --that the deference extended by the Court in Grutter knew no bounds. The only real admonition by the Grutter Court to the University of Michigan Law School was that the school was not to mechanically add predetermined points to every minority applicant, as was impermissibly being done in the University of Michigan's undergraduate admissions program. (38) Inextricably tied to the University of Michigan Law School's claimed interest in diversity in Grutter was its stated desire to enroll a "critical mass of minority students. (39) UT's claim in Fisher was no different. (40) Like Michigan, UT claimed that without resorting to the explicit consideration of race, it would lack the critical mass of minority students it needed, in part, to assure greater classroom diversity. (41) Nothing in the record suggests that UT employed more "camouflage" or "winks, nods, and disguises" (42) in implementing its goal of enrolling a "critical mass" of minority students than did Michigan's law school in Grutter. (43) Because UT's program was modeled after the program approved by the...