Trusteeship Trends: What Fisher v. Texas Means for Governing Boards

By AGB    //    Volume 24,  Number 4   //    July/August 2016

The final week of the U.S. Supreme Court’s 2015–16 term was bound to be memorable, despite (or perhaps because of) the unexpected death of Justice Antonin Scalia earlier this year. On the one hand, race-conscious college admissions finally gained the endorsement of a liberal majority, after a half century of uncertain and often confusing litigation. Yet this ruling was in other respects strikingly narrow—indeed, technically and fully applicable only to the University of Texas at Austin and its intricate and complex admissions process.

Even more striking, Justice Anthony Kennedy deliberately failed to reaffirm retired Justice Sandra Day O’Connor’s somewhat cryptic caution years ago that institutions must level the affirmative action playing field within one more generation (of which a decade and a half has already passed). And in his seminal majority opinion, Kennedy, who has been previously ambivalent on the subject, seems to have made permanent, as well as unequivocal, his embrace of the use of race in college admissions despite prior equal protection challenges.

Joining Justice Kennedy were Justices Ruth Bader Ginsburg, Steven Breyer, and Sonya Sotomayor; Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas vigorously dissented. Justice Elena Kagan recused herself, having worked on the case as solicitor general. The implications are vast and complex, and can only be briefly summarized here.

Despite the highly salutary nature of the majority’s endorsement of race-sensitive policies, institutions and their boards must proceed with substantial caution and adhere closely to Kennedy’s rigorous constitutional template. First, each institution must articulate clearly and publicly a “compelling interest” in achieving demographic diversity, while marshaling both “statistical and anecdotal” evidence of the kind that UT Austin submitted in its briefs.

Second, a college or university must be keenly aware that “asserting an interest in the educational benefits of diversity writ large is insufficient…. A university’s goals must be sufficiently measurable [noting again the UT Austin record] to permit judicial scrutiny of the policies adopted to reach them.”

Third, an institution that invokes diversity in this respect may not avoid its “continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances”—a burden that, in the majority’s judgment, UT Austin consistently and vigorously assumed and applied in the lower courts.

Fourth, a college or university need be especially attuned to the inherent risks of “formalistic racial classifications [that] may sometimes fail to capture diversity in all its dimensions and, when used in a divisive manner, could undermine the educational benefits the University values.” Accordingly, “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.”

Fifth, we should anticipate that other challenges may arise, for example, with regard to financial aid, and that currently pending cases reflecting the quite different concerns of Asian Americans and other ethnic groups may invite divergent constitutional analysis in the future. Meanwhile, boards need continually to appraise their current admission policies regarding the role of race, while meeting regularly with and receiving reports from senior admissions officers and chief legal officers.

Boards and senior academic administrators should expect a dramatic shift as a result of this ruling. Some questions likely to arise immediately include:diversity

  • In what major respects do UT Austin’s admissions policies differ from ours?
  • Do our board leaders regularly meet with the senior administrators who bear primary responsibility for our admissions policies?
  • Specifically, does our board regularly assess potential legal and policy risks regarding diversity in admissions, especially by seeking guidance from university attorneys or general counsels?
  • How can our admissions policies most effectively serve to enhance diversity? Specifically, in what ways might our board structure affect the diversity of the student body?

In the immediate aftermath of the Fisher ruling, higher education seems to have received from the high court a welcome—if not wholly anticipated—endorsement. Stay tuned for more on the subject in the pages of Trusteeship.

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