As we and just about everyone else have noted, Justice Kennedy, writing for a 7-to-1 majority of the Supreme Court of the United States, sent the hot potato Fisher case back to the Fifth Circuit Court of Appeals 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.”
Two justices, Scalia in a brief concurrence, and Thomas in a blistering attack on the “radical departure” that he considers Grutter to have taken from strict-scrutiny precedents, show their willingness to overturn Grutter. However, the petitioner did not ask the Court to overrule Grutter’s holding that a “compelling interest” in the educational benefits of diversity can justify racial preferences in university admissions, so Grutter states the law that the Fifth Circuit must apply on remand.
The majority took the Fifth Circuit to task, as had Chief Judge Edith H. Jones on behalf of the Fifth Circuit judges who unsuccessfully sought en banc rehearing of the panel decision below (644 F.3d 301 (5th Cir. 2011)), for unwarranted deference to the university regarding the means chosen to attain diversity. Grutter requires, in Justice Kennedy’s opinion, strict scrutiny of any admissions program using racial categories or classifications. In addition, “narrow tailoring” requires a reviewing court to verify both that it is “necessary” for the university to use race, and that no race-neutral alternatives would produce the benefits of diversity. On this point, the Fifth Circuit had reduced the inquiry to the “good faith” of the university, which the Fifth Circuit presumed. Justice Kennedy pointedly stated, “Grutter did not hold that good faith would forgive an impermissible consideration of race.”
An odd aspect of the decision is that many procedural issues were not mentioned at all. As one commentator noted, there are questions of the plaintiffs’ standing, injunctive relief seems no longer to be in play, and the remaining plaintiff’s damages may be only $100.
Although Justice Kennedy’s opinion does not mention Title VI of the Civil Rights Act of 1964, plaintiffs made Title VI claims as well as constitutional claims. Title VI is important in this context because it allows plaintiffs a way past the sovereign immunity of the university as an arm of the state. In 1992, the Supreme Court in United States v. Fordice, indicated that Title VI and the Fourteenth Amendment had a similar reach in application to university admissions.
Beyond the immediate impact on the remand to the Fifth Circuit, Title VI also applies to private colleges that are not state actors. More on that story to come, I suppose.
So what is the Fifth Circuit supposed to do on remand?
How can the university prove that using race as it does is “necessary”? The university contends that it “considers race in its admissions process as a factor of a factor of a factor of a factor.” The university argues that about 80 percent of students are admitted under the “Ten Percent Rule” (which does not take race into account), that other affirmative action measures also increase diversity, and that relatively few students are affected by the use of race in calculating the “Personal Achievement Index.” Consequently, it seems difficult to prove any measurable benefit from the university’s use of race, much less its necessity.
From the perspective of an employment lawyer, occasionally tasked with defending selection procedures, summary judgment in favor of the university appears difficult to defend. In the employment context, that “factor of a factor” admission might sink an employer subject to a “motivating factor” standard (although maybe not under a “but for” causation standard, as the university argues that Abigail Fisher wouldn’t have been admitted anyway).
I foresee a steep hill for the university to climb to show that no race-neutral alternatives serve the interest in diversity. The Ten Percent Rule surely contributes to diversity and focus on non-racial factors such as family income and parents’ education in assessing the Personal Achievement Index would allow class diversity—and consequently increased racial diversity as well.
John Richard Carrigan is a shareholder in the Birmingham office of Ogletree Deakins and a member of the Higher Education Practice Group.