Today, Pacific Legal Foundation filed this amicus brief in Fisher v. University of Texas—which is in the Fifth Circuit after being remanded from the Supreme Court last summer. We were joined on the brief by the American Civil Rights Institute (ACRI), the Center for Equal Opportunity (CEO), Individual Rights Foundation (IRF), Reason Foundation, Project 21, and the National Association of Scholars (NAS). As you surely recall, Abigail Fisher brought an equal protection challenge to the University of Texas at Austin’s (UT) race-based admissions policy after she was denied admission to the school. The Fifth Circuit had upheld the University’s race-conscious policy and Ms. Fisher petitioned the Supreme Court. As faithful readers will remember, many hoped the Supreme Court would use the opportunity to overturn its dubious approval of affirmative action in Grutter v. Bollinger.
Unfortunately, the Court, led by Justice Kennedy, chose not to revisit Grutter—saying it had not been asked to do so. However, the Supreme Court reversed the Fifth Circuit’s decision based on that court’s incorrect application of strict scrutiny. The Supreme Court held that the Fifth Circuit incorrectly deferred to UT’s determination that its race-conscious measures are “narrowly tailored” to achieve the University’s goals. The Court emphasized that the burden is at all times on the University to prove that its race-conscious means are necessary, and that no race-neutral alternatives will achieve the educational benefits the University seeks. If UT cannot make this showing, it cannot use race-preferences.
In our brief, we argue that UT did not consider several race-neutral alternatives. We demonstrate how leading state universities across the nation have embraced race-neutral admissions policies, and retained the ability to successfully enroll diverse student bodies. Universities have used socioeconomic-preferences, outreach at underrepresented schools, financial aid, educational initiatives, and transfer programs to enroll students from diverse backgrounds. Many schools have used these policies to exceed the level of racial diversity they were able to achieve when they had previously used race-preferences. And these schools’ student bodies are more diverse in kind, because they focus on a concept of diversity that is far broader than simple racial diversity.
UT itself had achieved significant racial diversity using a race-neutral percentage plan—wherein students from the the top ten percent of the graduating classes at Texas high schools were offered automatic admission. But after the Supreme Court’s decision in Grutter, it reverted back to a race-conscious policy. We argue that when UT decided to reinstate a race-based admissions policy, it did not consider the plethora of race-nuetral alternatives shown to be successful by schools across the country. Further, UT cannot show that these alternatives are inadequate. Accordingly, UT’s policy must fail strict scrutiny.
Though some have tried to wish away the Fisher opinion’s significance , the Supreme Court’s holding gives teeth to strict scrutiny. Hopefully the Fifth Circuit will take the Supreme Court’s words seriously this time.