The Aftermath of Fisher v. University of Texas: Where Do Colleges and Universities Go From Here?
By Kevin D. Finley
Equal access to education is one of the most pressing civil rights issues challenging our nation. To many Americans, an offer of admission from a prestigious institution is perceived as the equivalent of a “golden ticket” to a successful career and heightened social status. However, top-tier colleges and universities have very few available seats for admitted students relative to the massive applicant pool. Consequentially, students seeking undergraduate, graduate, and professional school degrees, engage in fierce competition for admission each year. Since admissions decisions are based primarily on an applicant’s personal statement, standardized test scores, and grade point average, students are under immense pressure to excel throughout their academic careers to gain a competitive edge over their peers. Therefore, it is unsurprising why the use of an applicant’s race as a “plus factor”—created by racial affirmative action policies—remains a topic of intense debate and bitter divisiveness.
Current State of the Law Governing the Use of Affirmative Action in Higher Education
The United States Supreme Court has struggled for decades over how colleges and universities may use race in admissions. The Court’s most recent ruling in Fisher v. University of Texas—anticipated by many legal scholars and higher education professionals to be the Court’s official pronouncement ending any consideration of race in admissions—was anticlimactic at best. The Court left open the issue for the lower courts to apply its latest articulation of the strict scrutiny standard. At present, the law is this: (1) an institution of higher education may consider the race and ethnicity of applicants as a factor in admissions decisions for purposes of diversity, provided that it is not used too mechanically and that all applicants are evaluated on an individualized basis. The university must prove that means chosen to attain diversity are narrowly tailored to that goal; and (2) a reviewing court is not permitted to give any deference at all to the college or university when assessing the constitutionality of an admissions program.
Justice Kennedy’s opinion in Fisher affirmed that narrow tailoring does not require the “exhaustion of every conceivable race-neutral alternative.” However, the opinion clarifies that strict scrutiny does require a court to “examine with care, and not defer to a university’s serious good faith consideration of workable race-neutral alternatives.” In other words, in order to survive strict scrutiny, a reviewing court must be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. And if a non-racial approach could promote the substantial interest about as well, and at a tolerable administrative expense, then the university may not consider race. Ultimately, strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice. Thus, in deciding Fisher, the Court did not overrule Grutter and declare the use of race in admissions unconstitutional. Rather, in the words of Stanford law professor Richard T. Ford, it merely “doubled down” on the strict scrutiny standard.
Lower Courts Will Face Difficulty Applying the “New” Strict Scrutiny Standard
The difficulty in application of the law stems from the second prong. Critics of the opinion, such as law professor Scott D. Gerber —and opponents of affirmative action policies generally—argue that if lower courts abide by the Supreme Court’s directive issued in Fisher, admissions programs across the nation will be invalidated because race is used “heavy-handedly” rather than modestly when rendering admissions decisions. If, however, lower courts continue to defer to academic institutions, the institutions will continue to dissemble and prevaricate in order to try and avoid having their “illegal programs” declared illegal. According to Gerber, this is exactly what happened recently on remand in the U.S. Court of Appeals for the Fifth Circuit in the Fisher case.
The application of the law is complex, and begs the question: Can a court correctly assess whether or not the means chosen by a university to achieve diversity places too much emphasis on an individual’s race? The answer is unclear. And perhaps the lack of clarity surrounding this question is precisely why this issue will likely make its way back to the Supreme Court in the near future.
Where Do College and Universities Go From Here?
If the Supreme Court ultimately decides to ban the use of race from consideration entirely from the admissions process, or if more states take action and ban such practices through voter initiatives, all colleges and universities will be forced to resort solely to race-neutral alternative measures to attain diverse student populations. Either outcome would most likely be viewed by opponents of affirmative action as a “victory” of sorts, as even such limited consideration of race currently utilized in holistic reviews of applicants, would be illegal. As a result, colleges and universities would have to give more weight to specific admissions criteria that are sometimes close substitutes for race—that may or may not manufacture more diversity. For example, using geographic diversity and zip codes as a way of promoting racial, ethnic, and economic diversity. Another option is to reduce reliance on standardized tests. Proponents of this idea argue high school grades are a better predictor of performance than SAT scores, and have a much less discriminatory impact against minority students.
Although the prospect of race-conscious admissions policies becoming unconstitutional is unsettling among supporters, such a result should not be viewed as a complete defeat, but as an opportunity to spur Americans who care about racial inequality to seek alternatives to affirmative action. This can be accomplished by addressing the deeply entrenched disadvantages that lower-income and minority children face from the beginning of life. To some extent, race-based affirmative action has been a woefully inadequate weapon in the arsenal against inequality. It treats the symptoms, but not the causes of an underlying social problem. For instance, the racial and socioeconomic gap in academic performance is one of America’s most pressing domestic issues. Despite the No Child Left Behind law, the Race to the Top initiative and endless debate over K-12 school reforms—accountability, standards, smaller classes, more effective teachers, better pay, charter schools, extended day, yearlong schools—the performance gaps (between races) have persisted, especially in the later ages.
Perhaps, rather than resort to these race-neutral alternatives, universities can take a bolder step by putting their endowment and influence behind a comprehensive effort to close the learning gap that starts at birth. An additional solution would be for prominent institutions to address undermatching of minority students. Arguably, this is the least controversial way to boost racial, ethnic and economic diversity—involving no preferences—by getting talented minority and disadvantaged students to apply to selective colleges in greater numbers. Researchers have found that lack of understanding about need-based financial aid and poor guidance counseling are contributing factors to minority and low income students failing to apply to selective colleges at which they would likely be admitted and succeed, instead selecting less selective institutions or none at all. Increased information about colleges and financial aid can address this issue.
As the law currently stands, race-neutral alternatives appear to be the preferred mode of operation to achieve diversity—largely because it is less objectionable than the blatant use of race in the court of public opinion. However, studies have proven that they are not as effective in increasing the population of underrepresented students on college campuses as race conscious admissions policies. Further, an outright constitutional ban on the consideration of race in the admissions process would cause the already abysmal numbers of minority students in higher education to plummet further. Due to the ever-changing demographics in our country, this should raise concern not only for minorities, but all Americans, because it is economically imperative to tap into the talents of America’s new majority. The twin trends of increasing economic inequality and the racial and ethnic shift in the population mean that America can no longer afford to bypass its growing number of low-income and minority students. If we do not dramatically expand college access and opportunity for poor students generally, and minority students specifically, we are headed for catastrophe. Thus, should the Court ever strike down the use of race in admissions evaluation, opponents of the policy should not cheer, and proponents should not jeer; both should take action to find solutions to improve access to higher education for all, because the future of our nation depends on it.
 Liz Leer et al., Education Emerges as Prominent Civil Rights Issue, Survey Says, THE NEW CIVIL RIGHTS, (last visited Nov. 22, 2014), civilrightsproject.wordpress.com.
 See generally Regents of Univ. Cal. v. Bakke, 438 U.S. 265 (1976); Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003); Fisher v. Univ. of Tex., 133 S. Ct. 2411 (2013).
 See Fisher v. Univ. of Tex., 758 F.3d 633 (5th Cir. 2014).
 Grutter, 539 U.S. at 337.
 Fisher, 133 S. Ct. at 2421.
 Scott D. Gerber, Affirmative Action and the Crisis in Higher Education, Huffington Post Politics: The Blog, (October 13, 2014, 5:59AM), http://www.huffingtonpost.com/scott-d-gerber/affirmative-action-and-th_b_5675128.html.
 See generally Richard D. Kahlenberg, A Better Affirmative Action: State Universities that Created Alternatives to Racial Preferences, THE CENTURY FOUNDATION, http://tcf.org/assets/downloads/tcf-abaa.pdf (last visited Nov. 22, 2014) at 1.
 Richard D. Kahlenberg, The Future of Affirmative Action: New Paths to Higher Education Diversity After Fisher v. University of Texas, THE CENTURY FOUNDATION, http://apps.tcf.org/future-of-affirmative-action (last visited Nov. 23, 2014) at 160. According to legal scholars John Brittain of the University of the District of Columbia Law School and former chief counsel of the Lawyers Committee for Civil Rights, and his coauthor Benjamin Landy, civil rights groups have made a “Faustian bargain” with universities in which civil rights advocates have not challenged the racially discriminatory impact of the SAT so long as universities provide affirmative action.
 Thomas J. Espenshade, Moving Beyond Affirmative Action, NYTIMES, (Oct. 4, 2012), http://www.nytimes.com/2012/10/05/opinion/moving-beyond-affirmative-action.html?_r=0.
 Kahlenberg, supra note 17 at 138-139.
 Id. at 28.