O n June 24, the U.S. Supreme Court issued its long-awaited decision in Fisher v. The University of Texas at Austin, in which plaintiff-appellant Abigail Fisher directed a multi-faceted attack on the constitutionality of the race-conscious admissions program created and administered by the University. Although the Court had numerous options before it regarding how it might decide the case, it ultimately rendered a decision vacating and remanding the decision by the U.S. Fifth Circuit Court of Appeals, which had upheld the constitutionality of the University's program. The Court, in a 7-1 decision authored by Justice Anthony Kennedy, left in place the Court's 2003 decision in Grutter v. Bollinger, which had upheld the educational benefits of diversity as a compelling interest which could justify the use of race as a factor in a university's admissions process, but also held that the methods used by the university to achieve that interest must be narrowly tailored to achieve that interest and were subject to strict scrutiny.
In its decision in Fisher, the Supreme Court held the Fifth Circuit did not properly apply a strict scrutiny test to the University's race-conscious admissions process and instead had accorded too much deference to the good faith of the University in designing its process. The Court made clear that, unlike a university's determination that consideration of race is necessary to achieve the educational benefits of diversity, the means chosen by the university to achieve that goal are entitled to no deference by courts at all. Instead, the university must demonstrate and prove to the court that race is not the determining factor in the admission of students and in particular that the consideration of race is necessary and no race-neutral methods could achieve the same, or nearly the same, results in terms of student body diversity. On these questions, the Court said, courts must conduct the searching examination that strict scrutiny in fact requires.
In this program, noted scholars and practitioners will examine the import and impact of the Court's decision on race-conscious admissions programs. The Court's statements about the required strict scrutiny will be enumerated and reviewed, and compared with the Court's statements and the result in Grutter. The panel will discuss:
- • What, if anything, does the decision add to what Grutter already implicitly or explicitly required?
- • What must institutions be able to demonstrate and prove to courts with respect to their race-conscious admissions programs, in particular with respect to their consideration of race-neutral alternatives?
- • What race-neutral alternatives should institutions be considering?
- • When will the results of a race-neutral alternative be judged sufficient so that an institution is precluded from consideration of race as a factor in their admissions process?
- • What, if anything, should institutions be doing now in light of the Court's decision?
- • What are the implications for other race-conscious programs, such as financial aid or outreach?
- • What should institutions expect in the way of increased litigation as a result of the decision and how should they prepare?
Please join our panel for a thoughtful and "searching examination" of these important questions raised by the Court's decision in Fisher. Register today!