On Monday, June 24, 2013, the United States Supreme Court issued its long-awaited decision in the Fisher v. UT Austin case. In that case, the Caucasian plaintiff, Abigail Fisher, challenged the admissions program of The University of Texas at Austin (UT) and contended that her denial of admission violated the Equal Protection Clause of the United States Constitution. This was a highly watched case and over 70 amicus briefs were filed, most in support of UT’s holistic admissions process which considers an applicant’s race/ethnicity as one of several factors regarding admission to the school.
The case is especially significant for diversity and inclusion practitioners. While the plaintiff purported not to challenge existing law, there was considerable concern that the high Court might do just that, overrule the Michigan Law School case. In Grutter v. Bollinger, decided in 2003, the Supreme Court upheld the Law School’s use of race/ethnicity as one of several “plus factors” in an admissions process that evaluated the overall individual contribution of each candidate for admissions. The Court recognized that Michigan had a compelling state interest is achieving the educational benefits of a diverse student body. The Court’s agreement to review the Fisher case so soon after the Grutter decision put the holding of the Michigan case at risk.
In its 7-1 opinion, the Court remanded the Fisher case to the Fifth Circuit for consideration under a strict scrutiny standard of review. In short, the Court vacated the favorable decision for UT, which had been appealed by Ms. Fisher, and concluded that the lower court had not followed the correct legal standard.
Significantly, the existing precedent established in the Michigan case regarding the importance of diversity in the educational context remains valid.
The fight to preserve the benefits of a diverse classroom is far from over, but at least for today, the right to try to achieve them remains.
As UT’s President Bill Powers stated following the Fisher decision: “We’re encouraged by the Supreme Court’s ruling in this case. We will continue to defend the University’s admission policy on remand in the lower court under the strict standards that the Court first articulated in the Bakke case, reaffirmed in the Grutter case, and laid out again today. We believe the University’s policy fully satisfies those standards. We remain committed to assembling a student body at The University of Texas at Austin that provides the educational benefits of diversity on campus while respecting the rights of all students and acting within the constitutional framework established by the Court.”
As diversity and inclusion practitioners, we recognize the value of diversity — from the classroom to the boardroom. And as the demographics of our country continue to move toward a more ethnically diverse population, we must protect the ability of all students, our future employees and leaders, to derive the benefits of a diverse learning environment.
Elizabeth A. Campbell is a Partner and Chief Diversity Officer for Andrews Kurth LLP and is a member of True Blue Inclusion. She is responsible for the development and implementation of the diversity and inclusion components of the firm’s strategic plan, and collaborates with the firm’s Labor and Employment Section attorneys and is a frequent speaker, training facilitator and author on the topic of diversity and inclusion and related employment law topics. Along with her partners Gene Locke and Lino Mendiola, Elizabeth filed an amicus brief in the Fisher case on behalf of the Houston Community College System supporting the admissions program of UT.