ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY OF TEXAS AT AUSTIN et al.
[June 24, 2013]
Justice Kennedy delivered the opinion of the Court.
The University of Texas at Austin considers race as one of various factors in its undergraduate admissions process. Race is not itself assigned a numerical value for each applicant, but the University has committed itself to increasing racial minority enrollment on campus. It refers to this goal as a “critical mass.” Petitioner, who is Caucasian, sued the University after her application was rejected. She contends that the University’s use of race in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment.
The parties asked the Court to review whether the judgment below was consistent with “this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger (2003). Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court’s grant of summary judgment to the University was incorrect. That decision is vacated, and the case is remanded for further proceedings.
Located in Austin, Texas, on the most renowned campus of the Texas state university system, the University is one of the leading institutions of higher education in the Nation. Admission is prized and competitive. In 2008, when petitioner sought admission to the University’s entering class, she was 1 of 29,501 applicants. From this group 12,843 were admitted, and 6,715 accepted and enrolled. Petitioner was denied admission....
In recent years the University has
used three different programs to evaluate candidates for
admission....The Texas State Legislature...enacted a
measure known as the Top Ten Percent Law. The Top
Ten Percent Law 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. The
University’s revised admissions process, coupled with
the operation of the Top Ten Percent Law, resulted in a
more racially diverse environment at the University.
Before the admissions program at issue in this case, in
the last year under the...system that did not consider
race, the entering class was 4.5% African-American and
16.9% Hispanic. This is in contrast with the 1996
pre-Hopwood and Top Ten Percent regime, when race was
explicitly considered, and the University’s entering
freshman class was 4.1% African-American and 14.5%
Following this Court’s decisions in Grutter v. Bollinger, supra, and Gratz v. Bollinger, the University adopted a third admissions program, the 2004 program in which the University reverted to explicit consideration of race. This is the program here at issue. In Grutter, the Court upheld the use of race as one of many “plus factors” in an admissions program that considered the overall individual contribution of each candidate. In Gratz, by contrast, the Court held unconstitutional Michigan’s undergraduate admissions program, which automatically awarded points to applicants from certain racial minorities.
The University’s plan to resume race-conscious admissions was given formal expression in June 2004 in an internal document entitled Proposal to Consider Race and Ethnicity in Admissions (Proposal). The Proposal relied in substantial part on a study of a subset of undergraduate classes containing between 5 and 24 students. It showed that few of these classes had significant enrollment by members of racial minorities. In addition the Proposal relied on what it called “anecdotal” reports from students regarding their “interaction in the classroom.” The Proposal concluded that the University lacked a “critical mass” of minority students and that to remedy the deficiency it was necessary to give explicit consideration to race in the undergraduate admissions program.
To implement the Proposal the University included a student’s race as a component of the PAI score, beginning with applicants in the fall of 2004. The University asks students to classify themselves from among five predefined racial categories on the application. Race is not assigned an explicit numerical value, but it is undisputed that race is a meaningful factor.
Once applications have been scored,
they are plotted on a grid with the Academic Index on
the x-axis and the Personal Achievement Index on the
y-axis. On that grid students are assigned to so-called
cells based on their individual scores. All students in
the cells falling above a certain line are admitted. All
students below the line are not....
Petitioner applied for admission to
the University’s 2008 entering class and was rejected.
She sued the University and various University officials
in the United States District Court for the Western
District of Texas. She alleged that the University’s
consideration of race in admissions violated the Equal
Protection Clause. The parties cross-moved for summary
judgment. The District Court granted summary judgment to
the University. The United States Court of Appeals for
the Fifth Circuit affirmed..... Petitioner sought a writ
of certiorari. The writ was granted.
Among the Court’s cases involving racial classifications in education, there are three decisions that directly address the question of considering racial minority status as a positive or favorable factor in a university’s admissions process, with the goal of achieving the educational benefits of a more diverse student body: Bakke, Gratz, and Grutter. We take those cases as given for purposes of deciding this case.
We begin with the principal opinion
authored by Justice Powell in Bakke. In Bakke, the Court
considered a system used by the medical school of the
University of California at Davis. From an entering
class of 100 students the school had set aside 16 seats
for minority applicants. In holding this program
impermissible under the Equal Protection Clause Justice
Powell’s opinion stated certain basic premises. First,
“decisions based on race or ethnic origin by faculties
and administrations of state universities are reviewable
under the Fourteenth Amendment.” The principle of equal
protection admits no “artificial line of a ‘two- class
theory’ ” that “permits the recognition of special
wards entitled to a degree of protection greater than
that accorded others.” It is therefore irrelevant that a
system of racial preferences in admissions may seem
benign. Any racial classification must meet strict
scrutiny, for when government decisions “touch upon an
individual’s race or ethnic background, he is entitled
to a judicial determination that the burden he is asked
to bear on that basis is precisely tailored to serve a
compelling governmental interest.”
Next, Justice Powell identified one
compelling interest that could justify the consideration
of race: the interest in the educational benefits that
flow from a diverse student body. Redressing past
discrimination could not serve as a compelling interest,
because a university’s “broad mission [of] education” is
incompatible with making the “judicial, legislative, or
administrative findings of constitutional or statutory
violations” necessary to justify remedial racial
The attainment of a diverse student body, by contrast, serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes. The academic mission of a university is “a special concern of the First Amendment.” Part of “ ‘the business of a university [is] to provide that atmosphere which is most conducive to speculation, experiment, and creation,’ ” and this in turn leads to the question of “ ‘who may be admitted to study.’ ”
Justice Powell’s central point,
however, was that this interest in securing diversity’s
benefits, although a permissible objective, is complex.
“It is not an interest in simple ethnic diversity, in
which a specified percentage of the student body is in
effect guaranteed to be members of selected ethnic
groups, with the remaining percentage an
undifferentiated aggregation of students. The diversity
that furthers a compelling state interest encompasses a
far broader array of qualifications and characteristics
of which racial or ethnic origin is but a single though
In Gratz and Grutter, the Court
endorsed the precepts stated by Justice Powell. In
Grutter, the Court reaffirmed his conclusion that
obtaining the educational benefits of “student body
diversity is a compelling state interest that can
justify the use of race in university
admissions.” As Gratz and Grutter observed,
however, this follows only if a clear precondition is
met: The particular admissions process used for this
objective is subject to judicial review. Race may not be
considered unless the admissions process can withstand
strict scrutiny. “Nothing in Justice Powell’s opinion in
Bakke signaled that a university may employ whatever
means it desires to achieve the stated goal of diversity
without regard to the limits imposed by our strict
scrutiny analysis.” “To be narrowly tailored, a
race-conscious admissions program cannot use a quota
system,” but instead must “remain flexible enough to
ensure that each applicant is evaluated as an individual
and not in a way that makes an applicant’s race or
ethnicity the defining feature of his or her
application.” Strict scrutiny requires the university to
demonstrate with clarity that its “purpose or interest
is both constitutionally permissible and substantial,
and that its use of the classification is necessary
. . . to the accomplishment of its purpose.”
...Grutter made clear that racial “classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.” And Grutter endorsed Justice Powell’s conclusion in Bakke that “the attainment of a diverse student body . . . is a consti-tutionally permissible goal for an institution of higher education.” Thus, under Grutter, strict scrutiny must be applied to any admissions program using racial categories or classifications.
According to Grutter, a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.” Grutter concluded that the decision to pursue “the educational benefits that flow from student body diversity,” that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter. A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision. On this point, the District Court and Court of Appeals were correct in finding that Grutter calls for deference to the University’s conclusion, “ ‘based on its experience and expertise,’ ” that a diverse student body would serve its educational goals. There is disagreement about whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity. But the parties here do not ask the Court to revisit that aspect of Grutter’s holding.
A university is not permitted to define diversity as “some specified percentage of a particular group merely because of its race or ethnic origin.” “That would amount to outright racial balancing, which is patently unconstitutional.” “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’ ”
Once the University has established
that its goal of diversity is consistent with strict
scrutiny, however, 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.
Grutter made clear that it is for the courts, not for
university administrators, to ensure that “[t]he means
chosen to accomplish the [government’s] asserted purpose
must be specifically and narrowly framed to accomplish
that purpose.” True, a court can take account of a
university’s experience and expertise in adopting or
rejecting certain admissions processes. But, as the
Court said in Grutter, it remains at all times the
University’s obligation to demonstrate, and the
Judiciary’s obligation to determine, that admissions
processes “ensure that each applicant is evaluated as an
individual and not in a way that makes an applicant’s
race or ethnicity the defining feature of his or her
Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” strict scrutiny does require a court to examine with care, and not defer to, a university’s “serious, good faith consideration of workable race-neutral alternatives.” Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race. A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.
Rather than perform this searching examination, however, the Court of Appeals held petitioner could challenge only “whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith.” And in considering such a challenge, the court would “presume the University acted in good faith” and place on petitioner the burden of rebutting that presumption. The Court of Appeals held that to “second-guess the merits” of this aspect of the University’s decision was a task it was “ill-equipped to perform” and that it would attempt only to “ensure that [the University’s] decision to adopt a race-conscious admissions policy followed from [a process of] good faith consideration.” The Court of Appeals thus concluded that “the narrow-tailoring inquiry—like the compelling-interest inquiry—is undertaken with a degree of deference to the University.” These expressions of the controlling standard are at odds with Grutter’s command that “all racial classifications imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’ ”
Grutter did not hold that good faith would forgive an impermissible consideration of race. It must be remembered that “the mere recitation of a ‘benign’ or legitimate purpose for a racial classification is entitled to little or no weight.” Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice....
Strict scrutiny must not be strict in theory, but fatal in fact. But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that “encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
Justice Thomas, concurring.
I join the Court’s opinion because I
agree that the Court of Appeals did not apply strict
scrutiny to the University of Texas at Austin’s
(University) use of racial discrimination in admissions
decisions. I write separately to explain that I would
overrule Grutter v. Bollinger
, and hold that a State’s use of race in higher
education admissions decisions is categorically
prohibited by the Equal Protection Clause....
Justice Scalia, concurring.
I adhere to the view I expressed in
Grutter v. Bollinger: “The Constitution proscribes
government discrimination on the basis of race, and
state-provided education is no exception.” The
petitioner in this case did not ask us to overrule
Grutter’s holding that a “compelling interest” in the
educational benefits of diversity can justify racial
preferences in university admissions. I therefore join
the Court’s opinion in full.
Justice Ginsburg, dissenting.
The University of Texas at Austin
(University) is candid about what it is endeavoring to
do: It seeks to achieve student-body diversity through
an admissions policy patterned after the Harvard plan
referenced as exemplary in Justice Powell’s opinion in
Regents of Univ. of Cal. v. Bakke (1978). The University
has steered clear of a quota system like the one struck
down in Bakke, which excluded all nonminority candidates
from competition for a fixed number of seats. And, like
so many educational institutions across the
the University has taken care to follow the model
approved by the Court in Grutter v. Bollinger (2003)
Petitioner urges that Texas’ Top Ten
Percent Law and race-blind holistic review of each
application achieve significant diversity, so the
University must be content with those alternatives. I
have said before and reiterate here that only an ostrich
could regard the supposedly neutral alternatives as race
unconscious. As Justice Souter observed, the vaunted
alternatives suffer from “the disadvantage of deliberate
Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage. (“Many regions of the state, school districts, and high schools in Texas are still predominantly composed of people from a single racial or ethnic group. Because of the persistence of this segregation, admitting the top 10 percent of all high schools would provide a diverse population and ensure that a large, well qualified pool of minority students was admitted to Texas universities.”). It is race consciousness, not blindness to race, that drives such plans. As for holistic review, if universities cannot explicitly include race as a factor, many may “resort to camouflage” to “maintain their minority enrollment.”
I have several times explained why
government actors, including state universities, need
not be blind to the lingering effects of “an overtly
discriminatory past,” the legacy of “centuries of
law-sanctioned inequality.” Among constitutionally
permissible options, I remain convinced, “those that
candidly disclose their consideration of race [are]
preferable to those that conceal it.”
Accordingly, I would not return this
case for a second look. As the thorough opinions below
show, the University’s admissions policy flexibly
considers race only as a “factor of a factor of a factor
of a factor” in the calculus, followed a yearlong review
through which the University reached the reasonable,
good-faith judgment that supposedly race-neutral
initiatives were insufficient to achieve, in appropriate
measure, the educational benefits of student-body
diversity, and is subject to periodic review to ensure
that the consideration of race remains necessary and
proper to achieve the University’s educational
Justice Powell’s opinion in Bakke and the Court’s
decision in Grutter require no further determinations.