Fisher v. Univ. of Tex. At Austin

• Decision Date: 23 June 2016
• Docket Number: No. 14–981.,14–981.
• Citation: 136 S.Ct. 2198,195 L.Ed.2d 511
• Parties: Abigail Noel FISHER, Petitioner v. UNIVERSITY OF TEXAS AT AUSTIN et al.
• Court: U.S. Supreme Court

136 S.Ct. 2198

195 L.Ed.2d 511

Abigail Noel FISHER, Petitioner

v.UNIVERSITY OF TEXAS AT AUSTIN et al.

No. 14–981.

Supreme Court of the United States

Argued Dec. 9, 2015.

Decided June 23, 2016.

Bert Rein, Washington, DC, for Petitioner.

Gregory G. Garre, Washington, DC, for Respondents.

Donald B. Verrilli, Jr., Solicitor General, for the United States, as amicus curiae, by special leave of the Court, supporting the Respondents.

Paul M. Smith, Elizabeth C. Bullock, Jenner & Block LLP, Washington, DC, Beverly E. Ledbetter, Providence, RI, Kim Taylor, Chicago, IL, Jane E. Booth, New York, NY, James J. Mingle, Ithaca, NY, Robert B. Donin, Hanover, NH, Pamela J. Bernard, Durham, NC, Paul Pineau, Baltimore, MD, Mark C. DiVincenzo, Cambridge, MA, Wendy S. White, Philadelphia, PA, Ramona E. Romero, Princeton, NJ, Debra L. Zumwalt, Stanford, CA, Audrey J. Anderson, Nashville, TN, Alexander E. Dreier, New Haven, CT, for Respondents.

Patricia C. Ohlendorf, Austin, TX, Douglas Laycock, Charlottesville, VA, James C. Ho, Andrew P. LeGrand, Gibson, Dunn & Crutcher LLP, Dallas, TX, Gregory G. Garre, Maureen E. Mahoney, J. Scott Ballenger Nicole Ries Fox, Latham & Watkins LLP, Washington, DC, Lori Alvino McGill, Quinn Emanuel Urquhart & Sullivan LLP, Washington, DC, Katya S. Cronin, Tucker Ellis LLP, Cleveland, OH, for Respondents.

William S. Consovoy, Thomas R. McCarthy, J. Michael Connolly, Consovoy McCarthy Park PLLC, Arlington, VA, Paul M. Terrill, The Terrill Firm, P.C., Austin, TX, Bert W. Rein, Claire J. Evans, Wiley Rein LLP, Washington, DC, for Petitioner.

Justice KENNEDY

delivered the opinion of the Court.

The Court is asked once again to consider whether the race-conscious admissions program at the University of Texas is lawful under the Equal Protection Clause.

I

The University of Texas at Austin (or University) relies upon a complex system of admissions that has undergone significant evolution over the past two decades. Until 1996, the University made its admissions decisions primarily based on a measure called "Academic Index" (or AI), which it calculated by combining an applicant's SAT score and academic performance in high school. In assessing applicants, preference was given to racial minorities.

In 1996, the Court of Appeals for the Fifth Circuit invalidated this admissions system, holding that any consideration of race in college admissions violates the Equal Protection Clause. See Hopwood v. Texas, 78 F.3d 932, 934–935, 948

.

One year later the University adopted a new admissions policy. Instead of considering race, the University began making admissions decisions based on an applicant's AI and his or her "Personal Achievement Index" (PAI). The PAI was a numerical score based on a holistic review of an application. Included in the number were the applicant's essays, leadership and work experience, extracurricular activities, community service, and other "special characteristics" that might give the admissions committee insight into a student's background. Consistent with Hopwood, race was not a consideration in calculating an applicant's AI or PAI.

The Texas Legislature responded to Hopwood as well. It enacted H.B. 588, commonly known as the Top Ten Percent Law. Tex. Educ.Code Ann. § 51.803

(West Cum. Supp. 2015). As its name suggests, the Top Ten Percent Law guarantees college admission to students who graduate from a Texas high school in the top 10 percent of their class. Those students may choose to attend any of the public universities in the State.

The University implemented the Top Ten Percent Law in 1998. After first admitting any student who qualified for admission under that law, the University filled the remainder of its incoming freshman class using a combination of an applicant's AI and PAI scores—again, without considering race.

The University used this admissions system until 2003, when this Court decided the companion cases of Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304

, and Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257. In Gratz, this Court struck down the University of Michigan's undergraduate system of admissions, which at the time allocated predetermined points to racial minority candidates. See 539 U.S., at 255, 275–276, 123 S.Ct. 2411. In Grutter, however, the Court upheld the University of Michigan Law School's system of holistic review—a system that did not mechanically assign points but rather treated race as a relevant feature within the broader context of a candidate's application. See 539 U.S., at 337, 343–344, 123 S.Ct. 2325. In upholding this nuanced use of race, Grutter implicitly overruled Hopwood 's categorical prohibition.

In the wake of Grutter, the University embarked upon a year-long study seeking to ascertain whether its admissions policy was allowing it to provide "the educational benefits of a diverse student body ... to all of the University's undergraduate students." App. 481a–482a (affidavit of N. Bruce Walker ¶ 11 (Walker Aff.)); see also id., at 445a–447a. The University concluded that its admissions policy was not providing these benefits. Supp. App. 24a–25a.

To change its system, the University submitted a proposal to the Board of Regents that requested permission to begin taking race into consideration as one of "the many ways in which [an] academically qualified individual might contribute to, and benefit from, the rich, diverse, and challenging educational environment of the University." Id., at 23a. After the board approved the proposal, the University adopted a new admissions policy to implement it. The University has continued to use that admissions policy to this day.

Although the University's new admissions policy was a direct result of Grutter, it is not identical to the policy this Court approved in that case. Instead, consistent with the State's legislative directive, the University continues to fill a significant majority of its class through the Top Ten Percent Plan (or Plan). Today, up to 75 percent of the places in the freshman class are filled through the Plan. As a practical matter, this 75 percent cap, which has now been fixed by statute, means that, while the Plan continues to be referenced as a "Top Ten Percent Plan," a student actually needs to finish in the top seven or eight percent of his or her class in order to be admitted under this category.

The University did adopt an approach similar to the one in Grutter for the remaining 25 percent or so of the incoming class. This portion of the class continues to be admitted based on a combination of their AI and PAI scores. Now, however, race is given weight as a subfactor within the PAI. The PAI is a number from 1 to 6 (6 is the best) that is based on two primary components. The first component is the average score a reader gives the applicant on two required essays. The second component is a full-file review that results in another 1–to–6 score, the "Personal Achievement Score" or PAS. The PAS is determined by a separate reader, who (1) rereads the applicant's required essays, (2) reviews any supplemental information the applicant submits (letters of recommendation, resumes, an additional optional essay, writing samples, artwork, etc.), and (3) evaluates the applicant's potential contributions to the University's student body based on the applicant's leadership experience, extracurricular activities, awards/honors, community service, and other "special circumstances."

"Special circumstances" include the socioeconomic status of the applicant's family, the socioeconomic status of the applicant's school, the applicant's family responsibilities, whether the applicant lives in a single-parent home, the applicant's SAT score in relation to the average SAT score at the applicant's school, the language spoken at the applicant's home, and, finally, the applicant's race. See App. 218a–220a, 430a.

Both the essay readers and the full-file readers who assign applicants their PAI undergo extensive training to ensure that they are scoring applicants consistently. Deposition of Brian Breman 9–14, Record in No. 1: 08–CV–00263, (WD Tex.), Doc. 96–3. The Admissions Office also undertakes regular "reliability analyses" to "measure the frequency of readers scoring within one point of each other." App. 474a (affidavit of Gary M. Lavergne ¶ 8); see also id., at 253a (deposition of Kedra Ishop (Ishop Dep.)). Both the intensive training and the reliability analyses aim to ensure that similarly situated applicants are being treated identically regardless of which admissions officer reads the file.

Once the essay and full-file readers have calculated each applicant's AI and PAI scores, admissions officers from each school within the University set a cutoff PAI/AI score combination for admission, and then admit all of the applicants who are above that cutoff point. In setting the cutoff, those admissions officers only know how many applicants received a given PAI/AI score combination. They do not know what factors went into calculating those applicants' scores. The admissions officers who make the final decision as to whether a particular applicant will be admitted make that decision without knowing the applicant's race. Race enters the admissions process, then, at one stage and one stage only—the calculation of the PAS.

Therefore, although admissions officers can consider race as a positive feature of a minority student's application, there is no dispute that race is but a "factor of a factor of a factor" in the holistic-review calculus. 645 F.Supp.2d 587, 608 (W.D.Tex.2009)

. Furthermore, consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities. Id., at 606 ("Plaintiffs cite no evidence to show racial groups other than African–Americans and Hispanics are excluded from benefitting from UT's consideration of race in admissions. As the Defendants point out, the consideration of race, within the full context of the entire application, may be...