Tag Archives: Fisher II

Supreme Court of the United States Upholds University of Texas’ Affirmative Action Policy

On Thursday, June 23, 2016, the Supreme Court of the United States in a 4-3 vote upheld the affirmative action admissions policy in Fisher v. University of Texas at Austin (Fisher II), finding that the race-conscious admissions program in use at the time of Fisher’s application is lawful under the Equal Protection Clause.  Justice Kennedy wrote for the majority, joined by Justices Ginsburg, Breyer and Sotomayor.  Justices Thomas, Alito and Roberts dissented with Justice Kagan recusing herself.

This case was previously heard by the Supreme Court which resulted in a 2013 opinion which in a 7-1 vote, remanded the case to the Fifth Circuit.  In Fisher I, the Supreme Court directed the Fifth Circuit to reconsider the case under the higher threshold of strict scrutiny in determining whether UT’s admission policy comports with the Equal Protection Clause of the Fourteenth Amendment.  On remand, the Fifth Circuit once again upheld UT’s admission policy in which UT accepts the top 10% of graduates from Texas high schools and uses a holistic review for the remaining open spots.  The holistic approach includes many factors, with race being one of the factors.  The admissions process did not have quotas or specific goals in terms of the number of students meeting specific characteristics.  The Association of Research Libraries joined with 37 other higher education organizations in an amicus brief supporting the University of Texas.  Oral arguments were held in December.

In the opinion, Justice Kennedy first lays out three “controlling principles” from Fisher I in determining the constitutionality of a public university’s affirmative-action program: 1) the program must be evaluated under the higher bar of strict scrutiny; 2) universities cannot impose a fixed quota, but deference is given to a university’s “reasoned, principled explanation” to pursue diversity; and 3) the university bears the burden of proving that a “nonracial approach” would not promote its interests in promoting diversity (i.e., the university is not given deference on this point).

Although Justices Kennedy and Breyer seemed interested in the possibility of remanding the case back to the trial court during oral arguments, the opinion points out that there would be limited data available and “a remand would do nothing more than prolong a suit that has already persisted for eight years and cost the parties on both sides significant resources.”  While remand was not appropriate in this case, the majority opinion cautions the University of Texas to “remain mindful that diversity takes many forms” and that “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 court turns to the university’s goals in trying to improve diversity, noting that the “goals cannot be elusory or amorphous–they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.”  Here, the University of Texas

identifies the educational values it seeks to realize through its admissions process: the destruction of stereotypes, the “‘promot[ion of] cross-racial understanding,’” the preparation of a student body “‘for an increasingly diverse workforce and society,’” and the “‘cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.’”  Later in the proposal, the University explains that it strives to provide an “academic environment” that offers a “robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders.”  All of these objectives, as a general matter, mirror the “compelling interest” this Court has approved in its prior cases.

The University has provided in addition a “reasoned, principled explanation” for its decision to pursue these goals . . . following a year-long study, which concluded that “[t]he use of race-neutral policies and programs ha[d] not been successful” in “provid[ing] an educational setting that fosters cross-racial understanding, provid[ing] enlightened discussion and learning, [or] prepar[ing] students to function in an increasingly diverse workforce and society.”  (internal citations omitted)

The Court also rejects Fisher’s argument that the top 10% plan was sufficient to promote diversity.  Indeed, the Court notes that “the record itself contains significant evidence, both statistical and anecdotal” that race-neutral admissions policies were insufficient.  Key pieces of evidence including the demographic data the University submitted showing the stagnation of minority student enrollment from 1996-2002; anecdotal evidence of minority students feeling lonely and isolated; and quantitative evidence of the lack of enrollment of at least one minority student in classes with five or more students.

The majority also rejects Fisher’s proposal to eliminate the holistic approach and increase the percentage of students admitted based on class rank alone.  The Court points out the deficiencies of using a single metric to admit students:

Even if, as a matter of raw numbers, minority enrollment would increase under such a regime, petitioner would be hard-pressed to find convincing support for the proposition that college admissions would be improved if they were a function of class rank alone. That approach would sacrifice all other aspects of diversity in pursuit of enrolling a higher number of minority students. A system that selected every student through class rank alone would exclude the star athlete or musician whose grades suffered because of daily practices and training. It would exclude a talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class.

These are but examples of the general problem. Class rank is a single metric, and like any single metric, it will capture certain types of people and miss others. This does not imply that students admitted through holistic review are necessarily more capable or more desirable than those admitted through the Top Ten Percent Plan. It merely reflects the fact that privileging one characteristic above all others does not lead to a diverse student body. Indeed, to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this Court’s cases have defined it . . . At its center, the Top Ten Percent Plan is a blunt instrument that may well compromise the University’s own definition of the diversity it seeks.

None of Fisher’s proposed solutions or other solutions discussed during litigation were shown to be “available” and “workable” means of achieving UT’s educational goals and therefore, the Court finds, the university has met its burden of demonstrating its admissions plan was narrowly tailored.

The majority opinion concludes that while it is upholding UT’s policy, the university must continue to revisit its admissions policy and reflect on it:

A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter, 339 U. S. 629, 634 (1950). Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.

In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories for experimentation.”  The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.

Ultimately, today’s decision is a win for universities (particularly given that at least one of the dissenting justices indicated that he would have overturned the Supreme Court’s 2003 decision in Grutter, which allows race to be considered as one factor but that does not amount to a quota).  However, the majority opinion takes care to caution that admissions policies using race as a factor must continue to be revisited in light of new evidence and changes in circumstance.

New Advocacy and Policy Update

The latest ARL Advocacy and Public Policy Update (covering the period from October 1 to December 22) is now available.  Previous Advocacy and Policy Updates can be found here.

From the current update’s summary:

Copyright continues to be an active area with a number of developments since October. The House Judiciary Committee continues to move forward with its copyright review and is close to completing its schedule of meetings between House Judiciary majority and minority staffers and witnesses who testified at hearings during the course of the review. In early 2016, members of the House Judiciary Committee will determine what issues they may want to work on with respect to possible reform. Additionally, Representatives Marino, Chu and Comstock introduced their bill on Copyright Office modernization, which would move the Copyright Office out of the Library of Congress and establish it as an independent agency within the legislative branch. On October 16, 2015, the Court of Appeals for the Second Circuit released its long awaited opinion in Authors Guild v. Google, strongly affirming fair use. Also in October, the Library of Congress released its final rules for the current cycle of the Digital Millennium Copyright Act’s (DMCA) Section 1201 rulemaking. Finally, the Library Copyright Alliance (LCA) filed comments responding to the Copyright Office’s Notice of Inquiry regarding a proposed pilot program for mass digitization and extended collective licensing. These comments questioned the wisdom of such a pilot program.

The US Congress passed the omnibus appropriations bill for FY 2016 and avoided a government shutdown. The omnibus exceeded mandatory caps on discretionary funding, resulting in positive results for higher education and libraries.

The Department of Education issued a proposal to amend regulations and require that all Department grantees awarded direct competitive grant funds openly license all copyrightable intellectual property created with these funds. ARL submitted comments supporting the benefits of open licensing and encouraging continued dialog.

ARL joined in comments on the proposed revision to OMB Circular A-130, the Circular that provides the rules of the road for federal information management and information technology.

The DC Circuit heard oral arguments on net neutrality in December. Although threats regarding a rider to undermine the FCC’s ability enforce its net neutrality rules emerged during the omnibus appropriations process, this rider was ultimately not included.

Congress continues to consider reform of the Electronic Communications Privacy Act (ECPA), and there is widespread support in the House for such reform. The Cybersecurity Information Sharing Act of 2015 was altered in ways that raise greater privacy concerns than its original version and was passed in the omnibus appropriations bill.

The US Supreme Court heard oral arguments in Fisher v. University of Texas at Austin (Fisher II), a case involving the University of Texas (UT) admissions process, which seeks to improve student body diversity.

Finally on the international front, more countries have ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled, moving the Treaty closer to entry into force. The negotiations of the TransPacific Partnership Agreement (TPP) have now been finalized and the texts are now public, but the agreement must still be signed and passed by each of the negotiating parties.