Supreme Court Extends the Shelf Life of Affirmative Action - American Society of Employers - Anthony Kaylin

Supreme Court Extends the Shelf Life of Affirmative Action

The Supreme Court, in a surprising 4-3 decision - Justice Kagen had recused herself - upheld university admission affirmative action programs.  While this is a crucial decision that affects colleges and universities, it is not likely to directly impact employers.

In Fisher v. University of Texas  the state of Texas passed a law that allows admission to the University of Texas based on high school class rank (must be in top 10%), regardless of the high school and without regard to race. When Abigail Fisher applied to the University of Texas at Austin in 2008, the freshman class of more than 6,600 included 1,713 African-American and Hispanic students. Of those, 216 were admitted under the program that was challenged. Fisher was in the top 11% of her high school and was denied admission. 

Fisher filed suit, alleging that the University’s consideration of race as part of its holistic-review process disadvantaged her and other Caucasian applicants, in violation of the Equal Protection Clause.  The District Court entered summary judgment in the University’s favor, and the Fifth Circuit affirmed. In the Supreme Court’s first hearing of the case, Fisher I, it remanded the case to the Court of Appeals, so the University’s program could be further evaluated. The Fifth Circuit again affirmed summary judgment for the University.

In Fisher I, the Supreme Court laid out the principles that would uphold affirmative action programs in college admissions.  First, a university may not consider race “unless the admissions process can withstand strict scrutiny.” In other words, it must show that the “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary” to accomplish that purpose. Second, “the decision to pursue the educational benefits that flow from student body diversity is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper.”  Third, when determining whether the use of race is tailored to achieve the university’s permissible diversity goals, the school bears the burden of demonstrating that “available” and “workable” “race-neutral alternatives” do not suffice.

In Fisher II, Fisher argued that the University failed to meet the requirements laid out in Fisher I.  The Supreme Court disagreed.  First, the Supreme Court stated that the University’s interest was not to enroll a certain number of minorities, but instead an interest in obtaining “the educational benefits that flow from student body diversity.” Further, the University articulated concrete and precise goals such as ending stereotypes, promoting “cross-racial understanding,” preparing students for “an increasingly diverse workforce and society,” and cultivating leaders with “legitimacy in the eyes of the citizenry.” All of these reconcile with the Supreme Court’s view of compelling interests articulated in other cases.

The Supreme Court found that the University provided considerable statistical and anecdotal evidence to support its position.  For example, the demographic data the University submitted shows consistent stagnation in terms of the percentage of minority students enrolled from 1996 to 2002. In 1996, for example, 266 African-American freshmen were enrolled, or 4.1% of the freshman class.  This statistic was unchanged in 2003.  The numbers for Hispanic and Asian-American students told a similar story.  Class data also supported this lack of diversity.  In 2002 52% of undergraduate classes had no African-American students enrolled in them, and 27% had only one African-American student.

Fisher argued that the University could have used other means to attract minority students.  For example, the University could intensify its outreach efforts to African-American and Hispanic applicants. On the other hand, the University submitted extensive evidence of the many ways in which it had already intensified its outreach efforts to those students. The University created three new scholarship programs, opened new regional admissions centers, increased its recruitment budget by half-a-million dollars, and organized over 1,000 recruitment events.  The University stated these efforts did not yield the desired results.  The Supreme Court agreed with the University.

Although the Supreme Court recognizes that “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,” the Court upheld the University of Texas’ admission policy.  They did; however, advise the university to continually review its policies to ensure they are still necessary to ensure diversity.

How does this case impact employers?  The experts believe not at all.  Littler Mendelson PC employment attorney, Joe Weiner, said the ruling "didn't change the calculus" for how employers implement diversity programs and didn’t restrict diversity programs used by federal contractors. However, it is important that diversity programs do not have the appearance of voluntary affirmative action, otherwise organizations may have issues with discrimination claims down the road.  In addition, diversity programs need to be well documented (including goals and results) in case discrimination claims are brought forth.

Source:  Fisher v. University of Texas, 579 U.S. ___ (2016); Law360 6/23/16

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