Murtha Means More

Diversity Admissions Policies Following Fisher v. Texas

July 30, 2013

Steps to Consider In the Wake of Recent U.S. Supreme Court Ruling

In the recent case of Fisher v. University of Texas, the U.S. Supreme Court revisited the issue of when a college or university may use race-conscious criteria in its admissions policies.  While long awaited by many schools employing such policies, the Supreme Court’s decision did not resolve the constitutional questions. Instead, the Supreme Court ruled that, while a race-conscious admissions policy may be lawful under certain circumstances, courts must properly apply the highly demanding standard of “strict scrutiny” on a case-by-case basis. For this reason, the Supreme Court remanded the case to the lower courts for reconsideration.

As a result, not only is additional litigation certain to occur in the Fisher case itself, numerous other lawsuits will likely follow. It is expected that additional lawsuits will be filed challenging the constitutionality of such policies at other colleges and universities, including private institutions.  While the University of Texas is a public university, nearly all private colleges and universities are also subject to the requirements of the 14th Amendment because they receive funds from the federal government.  Although meaningful resolution remains years away, at best, higher-educational institutions may wish to consider several options in the wake of the Supreme Court’s decision.

Following the Supreme Court’s ruling in Fisher, courts will examine race-conscious admissions policies much more carefully.  In so doing, courts will require colleges and universities to prove two things.  First, the educational institution must prove that it has a compelling interest in pursuing “the educational benefits of diversity.”  In so doing, a college or university must tie such diversity benefits to its educational mission.  Second, it must establish that a race-conscious admissions program is sufficiently “narrowly tailored” to further that interest.  In this regard, an educational institution must prove that its policy considers race only to the minimum extent necessary and that no race-neutral alternatives could achieve a comparable result. 

To articulate a compelling interest in the educational benefits of diversity, a college or university must not only identify such benefits, but also demonstrate that those benefits directly relate to its institutional mission.  While courts will show deference to this determination, higher-educational institutions must not merely presume the existence or importance of such benefits.  Instead, a college or university must not only articulate, but also document the need for diversity, including but by no means limited to, racial diversity. 

Once the school identifies and supports a compelling interest, it must then demonstrate that its race-conscious admissions policy is sufficiently narrowly tailored to achieve the educational benefits of diversity.  On this point, schools will receive no deference and courts will evaluate such policies far more stringently following Fisher.  A college or university will be required to demonstrate that discriminatory impact on non-minorities is unavoidable and has been minimized to the maximum extent possible.  Similarly, the school will be required to prove that it seriously considered and necessarily rejected race-neutral alternatives for achieving the same goals.  Indeed, schools should not only seriously consider such alternatives, they may also wish to co-employ those efforts with race-conscious policies to achieve their goals.  In so doing, educational institutions should involve administrators and faculty to ensure that policies are as effective as possible, along with counsel to ensure that they are also legally sustainable. 

As a first step, educational institutions should consider a formal review of existing admissions policies.  In so doing, a college or university will want to be certain it has sufficiently documented a compelling interest in the educational benefits of diversity, being particularly careful also to identify and pursue diversity benefits unrelated to race.  Such demonstration should involve the school’s faculty to the maximum extent possible, as courts may be less likely to interfere with long-established rights of academic freedom.  Likewise, schools may wish to look to the experiences and opinions of currently-enrolled students in order to document the need for increased diversity.  Finally, in an effort to link the educational benefits of diversity to its purpose and goals as they relate to society as whole, an institution may consider involving local community and business leaders, particularly alumni, in identifying broader-reaching educational benefits of diversity.

Equally importantly, the institution must document its efforts to narrowly tailor any race-conscious admissions policy to achieve the benefits of diversity in the least discriminatory manner possible.  In so doing, the school should document its consideration, rejection, and/or co-employment of race-neutral alternatives.  In particular, a school may wish to consider alternatives employed by its peer and aspirant institutions in states where race-conscious admissions decisions are prohibited.  Finally, the institution should not only document the effectiveness of its policies, but should also periodically review and revise those policies in light of its ever-changing needs.   

If you have any questions about the issues addressed here, please contact   Hugh F. Murray at 860.240.6077/hmurray@murthalaw.com or Michael C. Markowicz at 860.240.6182/mmarkowicz@murthalaw.com.

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