Fisher v. University of Texas at Austin, No. 11-345; U.S. Supreme Court; opinion by Kennedy, J.; concurrences by Scalia and Thomas, JJ.; dissent by Ginsburg, J.; decided June 24, 2013. On certiorari to the U.S. Court of Appeals for the Fifth Circuit.

The University of Texas at Austin considers race as one of various factors in its undergraduate admissions process. The university, which is committed to increasing racial minority enrollment, adopted its current program after this court decided Grutter v. Bollinger, 539 U.S. 306, upholding the use of race as one of many "plus factors" in an admissions program that considered the overall individual contribution of each candidate, and Gratz v. Bollinger, 539 U.S. 244, holding unconstitutional an admissions program that automatically awarded points to applicants from certain racial minorities.

Petitioner, who is Caucasian, was rejected for admission to the university's 2008 entering class. She sued the university and school officials, alleging that the university's consideration of race in admissions violated the Equal Protection Clause. The district court granted summary judgment to the university. Affirming, the Fifth Circuit held that Grutter required courts to give substantial deference to the university, both in the definition of the compelling interest in diversity's benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal. Applying that standard, the court upheld the university's admissions plan.

Held: Because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, its decision affirming the district court's grant of summary judgment to the university was incorrect. Pp. 5-13.

(a) Bakke, Gratz and Grutter, which directly address the question considered here, are taken as given for purposes of deciding this case. In Bakke's principal opinion, Justice Powell recognized that state university "decisions based on race or ethnic origin … are reviewable under the Fourteenth Amendment," 438 U.S. at 287, using a strict scrutiny standard, id. at 299. He identified as a compelling interest that could justify the consideration of race the interest in the educational benefits that flow from a diverse student body, but noted that this interest is complex, encompassing a broad array "of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Id. at 315.

In Gratz and Grutter, the court endorsed these precepts, observing that an admissions process with such an interest is subject to judicial review and must withstand strict scrutiny, Gratz, 539 U.S. at 275, i.e., a university must clearly demonstrate that its "purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is 'necessary … to the accomplishment' of its purpose," Bakke, 438 U.S. at 305. Additional guidance may be found in the court's broader equal protection jurisprudence. See, e.g., Rice v. Cayetano, 528 U.S. 495, 517; Richmond v. J.A. Croson Co., 488 U.S. 469, 505. Strict scrutiny is a searching examination, and the government bears the burden to prove "that the reasons for any [racial] classification [are] clearly identified and unquestionably legitimate." Ibid. Pp. 5-8.

(b) Under Grutter, strict scrutiny must be applied to any admissions program using racial categories or classifications. A court may give some deference to a university's "judgment that such diversity is essential to its educational mission," 539 U.S. at 328, provided that diversity is not defined as mere racial balancing and there is a reasoned, principled explanation for the academic decision. On this point, the courts below were correct in finding that Grutter calls for deference to the university's experience and expertise about its educational mission. However, once the university has established that its goal of diversity is consistent with strict scrutiny, the university must prove that the means it chose to attain that diversity are narrowly tailored to its goal. On this point, the university receives no deference. Id. at 333. It is at all times the university's obligation to demonstrate, and the judiciary's obligation to determine, that admissions processes "ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application." Id. at 337. Narrow tailoring also requires a reviewing court to verify that it is "necessary" for the university to use race to achieve the educational benefits of diversity. Bakke, 438 U.S. at 305. The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.

Rather than perform this searching examination, the Fifth Circuit held petitioner could challenge only whether the university's decision to use race as an admissions factor "was made in good faith." It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption. It thus undertook the narrow tailoring requirement with a "degree of deference" to the school. These expressions of the controlling standard are at odds with Grutter's command that "all racial classifications imposed by government must be analyzed by a reviewing court under strict scrutiny." 539 U.S. at 326. Strict scrutiny does not permit a court to accept a school's assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice, yet that is what the district court and Fifth Circuit did here. The court vacates the Fifth Circuit's judgment. But fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis. In determining whether summary judgment in the university's favor was appropriate, the Fifth Circuit must assess whether the university has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity. Pp. 8-13.

631 F.3d 213, vacated and remanded.

Kagan, J., took no part in the consideration or decision of the case.