July 12, 2016

Natasha Baker Breaks Down Fisher II on Law360

HK’s Natasha Baker gave analysis on Fisher II to Law360.

The text of the article can be found below.

High Court On Affirmative Action: Data And Stats Matter

On June 23, 2016, the U.S. Supreme Court issued its long-awaited decision in Fisher v. University of Texas at Austin (Case No. 14–981)(Fisher II), ending nearly eight years of litigation involving UT’s use of race as a factor in its holistic admissions review process. The court affirmed the decision of the Fifth Circuit in its 4-3 decision with an opinion by Justice Anthony Kennedy, finding that UT’s holistic admissions plan did not violate the equal protection clause of the 14th Amendment.

UT’s holistic review, which permits consideration of race as a factor, occurs for a small percentage of applicants who are not eligible for admission under UT’s top 10 percent plan — a plan in which students in the top 10 percent of their public high school class may be eligible for automatic admission to UT.[1] Upholding UT’s holistic review process under the principles articulated in Grutter  vs. Bollinger and Fisher I, the court determined the following:

  • UT established a compelling interest to justify its use of race;
  • UT demonstrated that it had not achieved what it considered to be critical mass;
  • The results of race-conscious review were minimal but meaningful; and
  • Other race-neutral methods had been attempted but were not successful.

Notably, the opinion was not a theoretical analysis of 14th Amendment jurisprudence or past race-conscious admissions decisions. When analyzing the factors noted above, the court relied heavily on the evidence presented by UT in support of its arguments. The evidence, in the form of statistics and relevant data, had been gathered over decades and was carefully and skillfully marshaled to support UT’s position. Institutions using race-conscious admissions policies should carefully review the Fisher II decision insofar as it cites extensively to the record established by UT and is instructive as to the form and type of evidence necessary to support the use of race as a factor in admissions. A discussion of the evidence put forth in support of each factor is set forth below.

UT Established a Compelling Interest to Justify Its Use of Race

Rejecting Fisher’s argument that UT had not established a compelling interest to justify its use of race, the court cited its 2013 decision (Fisher I), noting:

[T]he 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.” Fisher I, 570 U. S., at ___” [E]nrolling adverse student body “promotes cross-racial understanding, helps to break down racial stereotypes, and enable students to better understand persons of different races.” Id., at 330. Equally important, “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.”

The court rejected Fisher’s assertion that a precise and measurable result was necessary to demonstrate a compelling interest, noting:

Indeed, since the university is prohibited from seeking a particular number or quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained.

Institutions using race-conscious admissions policies should note the court’s reluctance to conclude that diversity is a compelling interest on its face. Placing parameters on the definition of diversity as a compelling interest, the court noted:

On the other hand, asserting an interest in the educational benefits of diversity writ large is insufficient. A university’s goals cannot be elusory or amorphous — they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.

Relying on the record, the court concluded that UT had provided sufficient evidence to demonstrate that it had a compelling interest in achieving diversity, holding:

  • The record reveals that in first setting forth its current admissions policy, the university articulated concrete and precise goals. On the first page of its 2004 “Proposal to Consider Race and Ethnicity in Admissions,” the university identifies the educational values it seeks to realize through its admissions process: the destruction of stereotypes, the “‘promot[ion of] cross-racial understanding,’” the preparation of a student body “‘for an increasingly diverse workforce and society,’” and the “‘cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.’”
  • The university’s 39-page proposal was written following a year-long study, which concluded that “[t]he use of race-neutral policies and programs ha[d] not been successful” in “provid[ing] an educational setting that fosters cross-racial understanding, provid[ing] enlightened discussion and learning, [or] prepar[ing] students to function in an increasingly diverse workforce and society.”
  • Further support for the university’s conclusion can be found in the depositions and affidavits from various admissions officers, all of whom articulate the same, consistent “reasoned, principled explanation.”

In light of Fisher II, institutions relying on race-conscious admissions strategies to achieve racial diversity should ensure that admissions policies articulate similarly precise goals backed by self-study and critical analysis. Although Fisher and Grutter can be read consistently, the review of race-conscious admissions policies is far from over. Cases pending against Harvard and University of North Carolina are currently in the pipeline and the court’s reliance on data will likely continue.

UT Demonstrated That it Had Not Achieved What it Considered to Be Critical Mass

Rejecting Fisher’s argument that UT had achieved critical mass for the sake of diversity through the use of its race-neutral top 10 percent plan and was thus precluded from employing race-conscious admissions methods, the court relied on two decades of carefully gathered evidence submitted by UT from the pre-Hopwood era (prior to 1996), during the Hopwood era and post-Grutter (2003).

  • The record itself contains significant evidence, both statistical and anecdotal, in support of the university’s position. To start, the demographic data the university has submitted show consistent stagnation in terms of the percentage of minority students enrolling at the university from 1996 to 2002. In 1996, for example, 266 African-American freshmen enrolled, a total that constituted 4.1 percent of the incoming class. In 2003, the year Grutter was decided, 267 African-American students enrolled — again, 4.1 percent of the incoming class. The numbers for Hispanic and Asian-American students tell a similar story.
  • In addition to this broad demographic data, the university put forward evidence that minority students admitted under the Hopwood regime experienced feelings of loneliness and isolation.
  • This anecdotal evidence is, in turn, bolstered by further, more nuanced quantitative data. In 2002, 52 percent of undergraduate classes with at least five students had no African-American students enrolled in them, and 27 percent had only one African-American student. In other words, only 21 percent of undergraduate classes with five or more students in them had more than one African-American student enrolled. Twelve percent of these classes had had no Hispanic students, as compared to 10 percent in 1996.

By gathering and analyzing this data and shaping it to explain the story of underrepresented students at UT, the university effectively supported its position that it had not achieved a critical mass that it considered sufficient and, further, that it had been unable to do so using race-neutral methods.  The court held that UT met its burden of “showing that it had not obtained the educational benefits of diversity before it turned to a race-conscious plan.” Although the definition of “critical mass” cannot be articulated with precision, again the court relied on the evidence-based approach used by UT in reaching its conclusion that critical mass did not exist, noting that:

Before changing its policy the university conducted “months of study and deliberation, including retreats, interviews [and] review of data,” … and concluded that “[t]he use of race-neutral policies and programs ha[d] not been successful in achieving” sufficient racial diversity at the university.

Institutions of higher education should engage in the necessary self-study and both quantitative and qualitative review when determining whether critical mass has been achieved. The timeline and commitment are extensive and must be backed by data.

The Results of Race-Conscious Review Were Minimal but Meaningful

Looking at the evidence before it, the court rejected Fisher’s argument that consideration of race was unnecessary, having had only a minimal impact in advancing UT’s compelling interest.

Again, the record does not support this assertion. In 2003, 11 percent of the Texas residents enrolled through holistic review were Hispanic and 3.5 percent were African-American. In 2007, by contrast, 16.9 percent of the Texas holistic-review freshmen were Hispanic and 6.8 percent were African-American. Those increases — of 54 percent and 94 percent, respectively — show that consideration of race has had a meaningful, if still limited, effect on the diversity of the university’s freshman class.

The court’s acceptance of minimal but meaningful results was particularly important in light of the nature of the incremental gains that have been made in achieving racial diversity in American higher education.

Other Methods Had Been Attempted but Were Not Successful

The court flatly rejected Fisher’s unsupported contention that race-neutral methods were available to achieve UT’s interest, holding:

The university submitted extensive evidence of the many ways in which it already had intensified its outreach efforts to those students. The university has created three new scholarship programs, opened new regional admissions centers, increased its recruitment budget by half-a-million dollars, and organized over 1,000 recruitment events. Perhaps more significantly, in the wake of Hopwood, the university spent seven years attempting to achieve its compelling interest using race-neutral holistic review.

Thus we can see that institutions using race-conscious admissions policies should take care to establish evidence that race-neutral methods have been employed and have not achieved the desired results. UT’s resources as a preeminent, flagship institution likely supported its ability to financially support its stated goals. Less-resourced institutions will have to think creatively and strategically about how to demonstrate this, but it is possible.

Data Must Be Periodically Reviewed and Assessed

Finally, the court reminded UT that its decision was relevant for the snapshot period before the court and was not an ongoing endorsement of its methods:

The university engages in periodic reassessment of the constitutionality, and efficacy, of its admissions program … Going forward, that assessment must be undertaken in light of the experience the school has accumulated and the data it has gathered since the adoption of its admissions plan. As the university examines this data, it should remain mindful that diversity takes many forms. Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the university values. Through regular evaluation of data and consideration of student experience, 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.

Institutions that engage in race-conscious admissions practices must meet the standard set forth by the court with respect to regular evaluation and assessment of ever-changing circumstances.


Kennedy’s opinion in Fisher II was a trial lawyer’s dream, representing a rigorous application of the standard to carefully presented evidence, compiled over decades and shaped to support UT’s position.  Institutions using race-conscious admissions policies should ensure that their efforts are being documented and retained, should they be called upon to make their case.

[1] Under the Supreme Court’s 2003 decision in Grutter vs. Bollinger,[1] public institutions in the United States were permitted to consider race as a factor in admissions under the Equal Protection Clause of the 14th Amendment of United States Constitution where diversity is a stated educational goal insofar as it contributes to the overall educational experience or when diversity has been deemed necessary to prepare future leaders for success in an increasingly diverse workforce. Prior to Grutter, UT had ceased considering race in admissions in the wake of the Fifth Circuit Court of Appeal’s decision in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).) Prior to Hopwood, race was explicitly considered by UT in its admissions process and was frequently outcome-determinative under a traditional “affirmative action” program.

Originally published on Law360, July 7, 2016. Posted with permission.