At the end of its last term in June, the Supreme Court announced its decision in Fisher v. University of Texas at Austin. In that case, Abigail Fisher challenged the University of Texas’s use of racial preferences in its admissions policy as a violation of the Fourteenth Amendment’s equal protection clause. When Fisher applied to UT-Austin, the school accepted the top 10 percent of students from all in-state high schools (since lowered to 8 percent), then fills its remaining spots by considering a mix of factors, including a preference for individuals of some (but not all) racial minorities.
When the case originally came to the U.S. Court of Appeals for the Fifth Circuit, the court granted wide deference to UT-Austin and its claim that the racial preferences were justified by what the Supreme Court held — in a 2003 case out of the University of Michigan called Grutter v. Bollinger — to be a compelling government interest: educational diversity. The Supreme Court took Fisher’s appeal, and Cato filed an amicus brief supporting her, arguing that the policy didn’t pass strict scrutiny because the university failed to establish (and the lower court failed to require) the “strong basis in evidence” necessary to justify race-conscious measures and to enable a reviewing court to apply any meaningful level of review.
In a 7-1 opinion, the Court agreed, holding that the Fifth Circuit had not correctly applied strict scrutiny when it deferred to the university as to whether its race-conscious measures were necessary and narrowly tailored. While the Court didn’t reconsider Grutter or the continuing validity of “educational diversity” as a compelling state interest, it did remand the case to the Fifth Circuit with instructions to apply actual strict scrutiny to the university’s use of racial classifications.
Back before the Fifth Circuit, Cato has once again filed a brief supporting Fisher. We argue that the strong-basis-in-evidence requirement is necessary for several reasons: to enable courts to independently review the use of race, to smoke out illegitimate and arbitrary uses of race, to enable the proper tailoring of valid uses of race, to limit racial stigma, and to provide greater transparency and accountability. These reasons are all especially important in the context of diversity in education.
We then point out how UT-Austin has failed to meet its factual burden. It hasn’t established a factual basis to explain its conception of diversity (What will the use of race provide?); the necessity of its racial classifications (Why are there no race-neutral means available?); nor the reasoning behind the extent of its preferences (Why do only some racial classes receive preferences?). Because UT-Austin has failed so miserably to meet its factual burden, it’s clear that its admissions program is precisely what the strong-basis-in-evidence requirement is meant to eliminate: an arbitrary and amorphous use of racial classifications and a violation of the constitutional guarantee that every one of us, student or not, be treated as an individual with full legal equality.
The Fifth Circuit will hear argument in Fisher later this fall.