Tuesday, July 22, 2014

On Remand from the Supreme Court, Fisher Decided in the Fifth Circuit in Support of Affirmative Action Plan

Thanks so much to the bloggers at the Workplace Prof Blog for inviting me.  I am excited to join such a great group as a guest blogger.

For my initial post, I’d like to discuss Fisher v. University of Texas at Austin and its analysis of race-conscious affirmative action under strict scrutiny, in light of the Fifth Circuit’s ruling in the case last Tuesday (following the Supreme Court’s remand order last year).  My goal is to provide a starting point for dialogue on the continuing vitality of Fisher in supporting race-conscious affirmative action in various settings, including in the public workplace.

First, to provide some procedural background on the case, it was an open question as to whether the Fifth Circuit would send the case back down to the federal district court for further factfinding on the constitutional question under the Equal Protection Clause.  After additional briefing and oral argument, the federal appellate court denied the University’s motion for remand, stating that while it had the discretion to remand the case to the district court, it found the existing record sufficient since no new factual issues needed to be addressed, and the mistake identified by the Supreme Court was made by the appellate court and the district court alike and in the same fashion.  The Supreme Court, after hearing the case last year, remanded it for proper judicial assessment of the narrow tailoring requirement under strict scrutiny.  Although the Supreme Court found the state university’s use of race in admissions decisions in order to achieve student body diversity a compelling governmental interest, in line with the Court’s decisions in Bakke and Grutter,  the Court nonetheless remanded the case, stating that the reviewing court must independently assess whether UT-Austin’s plan was narrowly tailored to meet its diversity objective rather than defer to the University’s claims on this point. 

On the merits of the case, the Fifth Circuit noted that under the correct strict scrutiny standard, it had to evaluate, without deference to the University, whether the school’s method of achieving student body diversity was narrowly tailored to meet its diversity goal based on the evidence presented.  To satisfy the narrow tailoring requirement, the reviewing court must find that it is necessary for a university to use race for it to achieve the pedagogical benefits that flow from student diversity, and that no workable race-neutral alternatives would bring about these benefits.  In conducting its independent assessment, the appellate court carefully reviewed the record concerning UT-Austin’s use of its race-neutral Top Ten Percent Plan to select over 80% of its Texas students, and the school’s additional use of an individualized, race-conscious holistic review process to select the small remaining percentage of students.  The court noted that UT-Austin also engaged in various race-neutral outreach and scholarship programs to reach under-represented student populations.  In its evaluation, the court of appeals found that the school used a range of race-neutral methods to try to boost minority enrollment and selected the vast majority of its students through the race-neutral Top Ten Percent Plan.  Further, the court explained that the University’s use of a holistic review that took into account the race of the applicants served to complement the pool of students admitted through the Top Ten Percent Plan by bringing in students who have much to contribute to the school’s diversity based on their various skills, achievements, and perspectives but who were overlooked using the Percent Plan alone.  The court determined that this holistic review was a highly individualized and highly competitive process, and not a quota system.  In attentively examining all of these facets of UT-Austin’s admissions program, the court held that the narrow tailoring requirement under strict scrutiny for race-conscious decisionmaking was satisfied, and affirmed the district court’s grant of summary judgment in favor of UT. 

This was a 2-1 decision, with Judge Carolyn King joining Judge Patrick Higginbotham in the majority decision, and Judge Emilio Garza dissenting.  Judge Garza in his dissent took issue with the meaning of a “critical mass” of student diversity, stating that the University framed its diversity objective as achieving a critical mass but was unable to objectively define this term.  Because Judge Garza found that the school failed to clearly explain its goal and what “critical mass” requires, he did not think the court could make an independent determination on whether the school met its narrow tailoring burden.

The Fifth Circuit’s latest decision in Fisher is an important win for UT-Austin, and for affirmative action.  Although Fisher concerns the constitutionality of affirmative action plans using race in the higher education setting, its analysis would apply to affirmative efforts involving race by other state actors and thus has implications for public employers who wish to use race-conscious affirmative action plans to attain a diverse workforce.  As I discussed in a talk I gave at a symposium this past spring and further discuss in a forthcoming piece, the Supreme Court’s decision in Fisher, and now along with the Fifth Circuit’s recent decision on remand, can be used to help demonstrate the constitutional validity of race-conscious affirmative efforts in the public workplace to achieve workforce diversity.  

RKL

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