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Supreme Court Affirms Constitutionality of UT Admissions Policy

June 24, 2016


​​The U.S. Supreme Court issued its long-awaited decision yesterday in the second hearing of Fisher v. University of Texas at Austin​ (UT), voting 4-3 to uphold UT’s diversity in admissions policy.

The ruling makes the fourth time in four decades that the Supreme Court has reaffirmed that the educational benefit of a diverse student body is a compelling government interest that can justify the narrowly tailored consideration of race.

“Importantly, [the] decision also underscores the considerable deference owed to American colleges and universities in defining the intangible characteristics, like student body diversity, that are central to each institution's identity and educational mission,” said ACE President Molly Corbett Broad in a statement.

The hearing was the second in three years for Fisher, which began in 2008. The Supreme Court issued its first ruling in Fisher in 2013, when it reaffirmed the educational benefit of a diverse student body. However, the decision emphasized that this consideration is subject to “strict scrutiny” and remanded the case for further deliberation. The U.S. Court of Appeals for the Fifth Circuit found that UT had met the strict scrutiny standard, leading plaintiff Abigail Fisher to appeal yet again to the Supreme Court.

Yesterday’s decision in the case known as Fisher II tells colleges "you don’t get a free pass, but you get a lot of deference" when it comes to devising admissions policies that consider race, ACE General Counsel Peter McDonough told The Chronicle of Higher Education in an interview.

“The institution needs to be able to explain how they went about making their judgment," McDonough said, "but it is their judgment to make.”

ACE and 37 other associations emphasized in an amicus brief to the Supreme Court in Fisher II that institutional pluralism is a hallmark of American higher education. The brief stressed that “the constitutionally protected freedom to assemble a diverse student body would amount to little if it did not include the freedom to define the diversity sought” in accordance with each institution’s mission and concept of education. 

Out of about 4,500 colleges and universities in the country, ACE Senior Vice President Terry Hartle estimated no more than 200 explicitly consider race in admissions, telling Marketplace’s Amy Scott that he doesn’t expect that number to grow much. Except in a handful of states that prohibit the consideration of race, institutions that want to use it are already doing so.

“Remember, the consideration of race in college and university admissions has been legal for a very long time,” he said. “What the Supreme Court has said today is it continues to be legal.”

“We need only look to events of the past many months where students nationwide have demanded not only an increase in the number of minority students on campuses, but also recognition of injustices and increased attention to the experiences of students of color,” McDonough and Lorelle Espinosa, assistant vice president for ACE’s Center for Policy and Research Strategy, wrote in an op-ed for The Chronicle

“Moreover, institutions are responding. ACE’s survey of more than 550 college presidents released la​​​​st March shows that since 2013, campuses have made racial climate a priority and are taking substantive, systemic action by way of increased support for diversity initiatives, student support services, cultural competency training, and public acknowledgement of a range of issues related to racial climate on campus. In this decision, the Supreme Court continued to enable these efforts in ways both legal and symbolic.”

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