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AGB Alert: U.S. Supreme Court's Ruling on Affirmative Action in Higher Education

Jun 23, 2016

This morning, the U.S. Supreme Court resolved in the University's favor the protracted litigation brought by student applicant Abigail Fisher against the University of Texas-Austin. Writing for the majority, Justice Anthony Kennedy declared that both public and independent institutions may lawfully take race (among other factors) into account in admitting students. Justices Ruth Bader Ginsburg, Steven Breyer, and Sonya Sotomayor joined without comment, while Justices Clarence Thomas, Samuel Alito, and Chief Justice Roberts filed dissents. The majority did, however, caution that a university may not invoke such an interest "without refinement" and must accept "the enduring challenge to our Nation's education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity."

The long-term implications of this ruling are difficult to determine because this case analyzed admissions policies unique to one institution. However, the seemingly broad approval of carefully documented race-conscious policies like those of UT-Austin appear to validate comparably refined and documented diversity interests reflected in a broad range of other admission policies.

Key findings in the ruling that require attention by both public and independent institutions and their boards are:

  • Each institution should articulate clearly and publicly its "compelling interest" in achieving diversity, while marshalling both "statistical and anecdotal" evidence along with the type of detailed demographic data submitted in the record by the UT-Austin administration. The majority's endorsement and embrace of such evidence in Justice Kennedy's opinion was both striking and welcome.
  • A university should not simply declare, but fully articulate (as UT-Austin did) a "reasoned, principled explanation" for pursuing diversity goals and interests. And, as the majority opinion wisely cautioned, "asserting an interest in the educational benefits of diversity writ large is insufficient...A university's goals must be sufficiently measurable [noting again the UT-Austin record] to permit judicial scrutiny of the policies adopted to reach them."
  • An institution that invokes diversity in this regard may not avoid its "continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances"—a burden that UT-Austin consistently and vigorously assumed and applied.
  • A university needs to be especially attuned to the inherent risks of "formalistic racial classifications [that] may sometimes fail to capture diversity in all its dimensions and, when used in a divisive manner, could undermine the educational benefits the University values." Accordingly, "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." Subtle though this cautionary note may seem, it is nonetheless vital to the ongoing balance on which the majority relied.

Issues for Institutional Leaders to Discuss with Their Boards

AGB recommends that institutional leaders, in concert with their boards, review current admissions policies and discuss the following:

  • Whether the policies meet their institutions' current and changing circumstances.
  • Whether the board or a designated committee should regularly receive reports from the chief executive and/or enrollment manager on recruitment/admissions issues.
  • Whether the admissions policy should be regularly assessed for potential legal and policy risks.
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