The University Properly Demonstrated its Consideration of Race Was Narrowly Tailored to Achieve Diversity

For Immediate Release: June 23, 2016
Contact: Shirley J. Wilcher, Executive Director

Washington, DC, June 23, 2016 – The American Association for Access, Equity and Diversity (AAAED), an organization of equal opportunity, affirmative action and diversity professionals, is very pleased that the United States Supreme Court has upheld the consideration of race as one of many factors in the admissions program of the University of Texas at Austin. In a 4 – 3 opinion written by Justice Anthony Kennedy, the Court ruled in favor of the University of Texas at Austin and its efforts to achieve a diverse student body.

Abigail Noel Fisher, an applicant who was denied admission to the University in 2008, sought the Supreme Court’s re-review after the lower court upheld the University’s program when the case was remanded in 2013. Fisher asserted that she was denied admission because the university impermissibly considered race as a factor in its decision. She sought to bar any consideration of race in the admissions process.

In 2013 and 2015, AAAED filed amicus curiae briefs in support of the University of Texas. The association argued, inter alia, that the University of Texas at Austin worked hard to develop a fair and inclusive admissions program that contributed to diversity on campus in the broadest sense of the word without unduly burdening anyone. The association also argued that the steps the University took to promote diversity were “narrowly tailored,” – another constitutional requirement – and necessary to achieve the compelling state interest.

AAAED President Marshall Rose stated: “Now that the Supreme Court has handed down its second decision in Abigail Fisher v. University of Texas at Austin, we wish to underscore that diversity remains a compelling interest, that colleges and universities may take race into account among many factors as part of a holistic admissions program, and that the limited inclusion of race can be done in a way that passes constitutional muster.”

In today’s decision the Supreme Court ruled that the University made the requisite showing that it had explored race-neutral alternatives, including the Texas Ten Percent Plan (top ten percent of Texas high school graduates are automatically admitted) and justified the consideration of race, among other factors, in order to achieve a diverse student body.

The Fisher case was unique in that the University’s admissions process was governed in part by the Texas Ten Percent Plan passed by the Legislature. In that plan, UT Austin had to admit students from Texas who graduated in the top ten percent of their classes. This plan was instituted after the Fifth Circuit in Hopwood (1996) struck down the inclusion of race in admissions decisions. Due to the existing racial segregation in the State, the plan had the effect of affording an opportunity for students of color to attend the flagship institution. Three quarters of the student body were admitted through this plan.

The Court rejected Ms. Fisher’s argument that the University must set forth more precisely the level of minority enrollment that would constitute a “critical mass.” The Court stated that, “The compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining the educational benefits that flow from student body diversity” (Emphasis added). It also reiterated the Court’s previous decision in the Grutter v. Bollinger case that, “enrolling a diverse student body promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” UT’s explanation of its diversity goals was also “reasoned and principled,” based on a comprehensive study that showed its race-neutral approach was not successful.

“In this increasingly diverse nation, our future depends upon all qualified individuals receiving a chance to compete in education, employment and business and we commend the University of Texas at Austin for its courage and the Court for its wisdom in reaching the right result for this nation,” added President Rose.