Fisher v. University of Texas at Austin: The Use of Race in Admissions and Implications for CIC Colleges and Universities - Presented by: Natasha ...

Fisher v. University of Texas at Austin: The
Use of Race in Admissions and Implications
for CIC Colleges and Universities

                                           Presented by:
                                    Natasha Baker, Esq.
                                 Hirschfeld Kraemer LLP
                                      San Francisco, CA
                          nbaker@hkemploymentlaw.com
                                             @njbtweets

Session Overview

 • Cases leading up to Fisher.
 • Fisher.
 • September 2013 Guidance from OCR/DOJ.
 • Application of Fisher to CIC Institutions.

Legal Framework

 14th Amendment:
 •   No State shall make or enforce any law which shall abridge the
     privileges or immunities of citizens of the United States; nor
     shall any State deprive any person of life, liberty, or property,
     without due process of law; nor deny to any person within its
     jurisdiction the equal protection of the laws
 Title VI of the Civil Rights Act of 1964
 •   No person in the United States shall, on the ground of race,
     color, or national origin, be excluded from participation in, be
     denied the benefits of, or be subjected to discrimination under
     any program or activity receiving Federal financial assistance.

Levels of Scrutiny
 Strict Scrutiny Test:
 A compelling interest;
 Means must be "narrowly tailored" to meet the objectives;
 Assessment of whether less restrictive means are available.

 Intermediate Scrutiny Test:
 Important interests;
 Means must be substantially related to the objectives.

 Rational Basis Test:
 Any other interest;
 Means must have a reasonable connection to achieving a legitimate
 objective.

Regents of the University of California v.
Bakke, 438 U.S. 265 (1978)

  • University reserved 16 places for minorities.
  • 5-4 vote. No clear majority decision.
  • Powell’s opinion was controlling.
     • Strict scrutiny test applied.
     • Rigid use of racial slots unconstitutional.
     • Opined that use of race as one of many factors
       could be constitutional.

The Michigan Cases

 Gratz v. Bollinger, 539 U.S. 244 (2003)
   •   Diversity as a compelling interest.
   •   Point system based on race. Admissions points
       automatically awarded to certain minority groups.
   •   Unconstitutional.

The Michigan Cases

 Grutter v. Bollinger, 539 U.S. 306 (2003)
   •  Diversity as a compelling interest was permissible.
   •  Concept of critical mass was permissible.
   •  Factors:
     • Workable race-neutral alternatives;
     • Flexible and individualized review of applicants;
     • Burden on students of a particular racial group;
     • Consideration of race was limited in time and
         subject to periodic review.
   • Constitutional.

Fisher: Factual Background

• Texas Top Ten Percent Program – approx. 80%
  of class.
• Individualized admissions for remaining spots
  based on talents, leadership qualities, family
  circumstances and race.
• Abigail Fisher and Rachel Multer Michalewicz,
  two white women, were denied admission and
  sued claiming an equal protection violation.
• Did not challenge diversity as a compelling
  interest.

Fisher: Procedural Background

•   District Court decision.
    •    Upheld policy in favor of University on Motion for Summary Judgment.
    •    Accorded deference to University’s decision that diversity is a compelling
         interest.
•   Fifth Circuit decision.
    •    Upheld decision of District Court.
    •    Burden was on Fisher as to “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."
•   Supreme Court decision (7-1, Ginsburg dissenting, Kagan recused.)
    • Vacated decision of Fifth Circuit and remanded.
    • Directed lower courts to correctly apply strict scrutiny standard.
    • Burden on University.

Fisher: Teachings

 • Diversity as a compelling interest is still
   permissible.
 • Race-neutral alternatives must have been
   evaluated and deemed insufficient.
 • Racially-conscious means must be narrowly
   tailored to achieve end goal.

Changes from Grutter to Fisher

 Compelling interest in diversity as a goal –
 University’s decision no longer given complete
 deference.
   •   Must have evidence in support of goal.

 Means tailored to achieve diversity - University’s
 decision no longer given deference.
   •   Court to review process and how process works in
       practice.

OCR/DOJ Guidance Post-Fisher

 • Affirms Fisher.
 • Confirms Grutter is still valid.
 • Confirms 2011 OCR/DOJ Guidance On The
   Voluntary Use Of Race To Achieve Diversity
   In Postsecondary Education
   (http://www2.ed.gov/about/offices/list/ocr/docs
   /guidance-pse-201111.html)
 • Glosses over

Schuette v. Coalition to Defend Affirmative
Action (Pending Before SCOTUS)

 • State law prohibiting race as a factor by
   public agencies, including public institutions.
 • Equal Protection case; procedurally different
   than Fisher.
 • Issue to watch: diversity as a compelling
   interest.
    •   Thomas and Scalia’s opinions in Fisher.

Application of Fisher to Your Institution

Step One: Identify Applicability

 What policies/practices are race-conscious?

Step Two: Confirm Diversity is Mission-
Driven

 1. What that goal is that based on?
    • In Fisher, UT’s decision that diversity is necessary
      goal was based on the University’s experience and
      expertise.
 2. Where is this reflected?
    •   Mission statement?
    •   Policies?
    •   EEO vs. Diversity Statements

Step Three: Use Race-Neutral Alternatives

 1. What else can we use?
 2. How well does it work?
 3. What evidence do we have in support of
    efforts and success/failure?

Race-Neutral Alternatives in Admissions
 DOJ/OCR’s 2011 “Guidance on the Voluntary Use of Race to Achieve
 Diversity in Postsecondary Education” provides the following examples:

 Consider an applicant’s socioeconomic status, first-generation
 college status, geographic residency, or other race-neutral criteria if
 doing so would assist in drawing students from different racial
 backgrounds to the institution.

 Include in admissions procedures special consideration for students
 who have endured or overcome hardships such as marked
 residential instability (e.g., the student moved from residence to
 residence or school to school while growing up) or enrollment in a
 low-performing school or district.

Race-Neutral Alternatives in Admissions
 DOJ/OCR’s 2011 “Guidance on the Voluntary Use of Race to Achieve
 Diversity in Postsecondary Education” provides the following examples:

 Implement a plan that guarantees admission to a top percentile of
 students graduating from all in-state high schools.

 Select schools (including community colleges) based on their
 demographics (e.g., their racial or socioeconomic composition), and
 grant an admission preference to all students who have graduated
 from those schools, regardless of the race of the individual student.

Race-Neutral Alternatives: Pipelines
 DOJ/OCR’s 2011 “Guidance on the Voluntary Use of Race to Achieve
 Diversity in Postsecondary Education” provides the following examples:

 Select high schools for partnership based on one or more of the
 following: school-wide performance on standardized tests, school-
 wide socioeconomic characteristics, geographic proximity to the
 institution, racial composition of the school’s student body, or the
 similarity of academic or programmatic themes between the
 institution and the school with which it is partnering. In selecting
 schools using such criteria, a college or university may take into
 account the impact of those criteria on the diversity of its programs.

Race-Neutral Alternatives: Pipelines
 DOJ/OCR’s 2011 “Guidance on the Voluntary Use of Race to Achieve Diversity in
 Postsecondary Education” provides the following examples:

 Form partnerships with other institutions of higher education, such
 as Historically Black Colleges and Universities (HBCUs), other
 minority-serving institutions, or community colleges to help the
 institution increase diversity.

 .

Race-Neutral Alternatives: Recruitment
 DOJ/OCR’s 2011 “Guidance on the Voluntary Use of Race to Achieve
 Diversity in Postsecondary Education” provides the following examples:

 An institution’s recruitment and outreach procedures could target
 school districts or high schools that are underrepresented in the
 institution’s applicant pool by focusing on geographic
 underrepresentation (e.g., schools in the Midwest, or urban or rural
 communities) or other characteristics (e.g., low-performing schools
 or schools with high dropout rates). Such targeting may also assist
 the institution in achieving racial diversity.

 Target districts or schools that enroll students who are
 predominantly from low-income households to help the institution
 achieve its interest in racial diversity.

Race-Neutral Alternatives: Recruitment
 DOJ/OCR’s 2011 “Guidance on the Voluntary Use of Race to Achieve Diversity in
 Postsecondary Education” provides the following examples:

 As part of its overall recruitment efforts, a postsecondary institution could
 target geographic areas, specific districts or schools, or colleges (e.g.,
 community colleges, or, at the graduate level, HBCUs or other minority-
 serving institutions), that have a significant number of potential applicants
 who are of races underrepresented in the institution’s applicant pool.

 Consider other recruitment and outreach tools to increase diversity in its
 applicant pool, such as, as part of its overall recruitment efforts, direct mail
 and other outreach efforts to potential applicants — including the use of
 advertising in media aimed at specific racial groups, participation by
 admissions staff in community-sponsored events aimed at informing
 underrepresented groups about the institution, and encouraging individual
 students to apply.

Race Neutral Alternatives: Mentoring
 DOJ/OCR’s 2011 “Guidance on the Voluntary Use of Race to Achieve
 Diversity in Postsecondary Education” provides the following examples:

 Provide mentoring, tutoring, or other academic support to all
 enrolled students who are at risk of not completing their programs.

 Sponsor retention or support programs open to all students that offer
 content that the institution believes might be of particular interest to
 a group targeted for retention. Such programs could, for example,
 hold motivational lectures (e.g., highlighting the accomplishments of
 Latino business leaders or the artistic achievements of Pacific
 Islanders), and could include small group follow-up workshops with
 mentors.

Step Four: Use Race as Factor in a Holistic,
Individualized Review

 • A factor. Not the factor.
 • Ensure use is narrowly tailored to achieve
   goal.
 • Ensure that you know when the goal has
   been met.

Step Five: Periodic Review & Assessment

 • Set meaningful review deadlines based on
   data and commensurate with goals.

Conclusion

Q&A