By a vote of 7 to 1, the United States Supreme Court yesterday ruled that the Fifth Circuit did not apply the correct legal standard to equal protection claims challenging the University of Texas’ race-based components of its admissions process. In Fisher v. University of Texas at Austin, Abigail Fisher was denied summer and fall admission into the 2008 freshmen class at the University of Texas at Austin.

Among the applicants for the 2008 entering class, 81 percent of students were admitted under the university’s Top 10 Percent Law, in place at the time, which guaranteed admission to students who graduated in the top 10 percent of their class. The remaining 19 percent (and applicants who ultimately were rejected) were evaluated under the “AI/PAI Plan,” a multi-faceted, individual review process. Under that plan, two scores were given to each applicant, an Academic Index (AI) score and a Personal Achievement Index (PAI) score. The AI was based on the student’s class rank, standardized tests, and high school curriculum. The PAI was a more subjective, multi-factor, individualized assessment that included consideration of leadership qualities, extracurricular activities, honors and awards, work experience, community service, and “special personal circumstances.” The “special personal circumstances” component included, among other things, consideration of a candidate’s race. Finally, if a Texas resident’s scores fell just below those selected for admission, the University would take a second look at the application. The University then would decide whether to admit the student for the summer, the fall, or to its Coordinated Admissions Program.

Fisher sued alleging that the University’s admissions policies and procedures discriminated on the basis of race and in violation of their right to equal protection of the law under the Fourteenth Amendment to the United States Constitution. When the district court entered judgment in favor of the University, Fisher appealed.

The Fifth Circuit Court of Appeals upheld the University’s admissions policies. Fisher v. University of Texas at Austin, 631 F.3d 213 (5th Cir. 2011). According to the appeals court, the admissions process was modeled on Michigan Law School’s program which the United States Supreme Court approved in Grutter v. Bollinger, 539 U.S. 306 (2003). In Grutter, the Court recognized that the pursuit of diversity was a compelling interest in higher education and that public universities had the right to increase enrollment of underrepresented minorities. However, any measures used to consider race as a factor in the admissions process had to be narrowly tailored to accomplishing the goal of diversity. The Fifth Circuit held that the University of Texas policy complied with the mandates set out in Grutter, and that Fisher failed to establish that the University’s admissions policy violated the Equal Protection Clause or otherwise discriminated against them on the basis of their race.

On appeal, the United States Supreme Court ruled that the Fifth Circuit erred because it did not properly apply the strict scrutiny standard to the equal protection claims. Looking to its prior decisions in Grutter, Regents of Univ. of Cal. v. Bakke, and Gratz v. Bollinger, the Court observed that any racial classification in university admissions must meet strict scrutiny, which requires a showing that racial classifications are “narrowly tailored to further compelling governmental interests.” To establish that its admissions policy was “narrowly tailored” to meet that goal, the University must demonstrate that the use of race as a factor is “necessary” to achieve the educational benefits of diversity and that no race-neutral alternatives would produce the same benefits. According to the Court, the Fifth Circuit erred because it “confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications.” The Court stated that good faith does not “forgive an impermissible consideration of race.” Thus, the Court returned the case to the Fifth Circuit to consider whether the university’s consideration of race is narrowly tailored to achieve the benefits of diversity.

Unfortunately for many who have been awaiting this ruling, it does not resolve the big issue of affirmative action in school admissions policies. Justice Ginsburg, writing a dissenting opinion, believed that the record sufficiently showed that the University’s admissions standards met strict scrutiny and would have affirmed the Fifth Circuit ruling. Whether Ginsburg’s opinion will ultimately play out is reserved for another day.

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