by Julie Pelegrin

Earlier this summer, the United States Supreme Court issued its opinion in Fisher v. University of Texas at Austin, holding that the admissions policy at the University of Texas at Austin (UT) is constitutional. The issue? The admissions policy includes race among the many factors that the UT considers in its holistic review of applicants.

But wait – isn’t it illegal for an institution of higher education to base admission decisions on an applicant’s race? Isn’t that discrimination? Prohibited by the equal protection clause in the Fourteenth Amendment? While it is discrimination of a sort, according to the U.S. Supreme Court, it isn’t unconstitutional.

Why?

Strict Scrutiny Test
The first thing to know is how a court decides whether a law or a government policy violates the equal protection clause. If a law applies differently to a group of persons based on their race, the law creates a suspect class. For this type of discrimination to be lawful, the government must demonstrate that treating people differently because of their race will accomplish a compelling state interest. And it must show that its consideration of race is narrowly tailored to accomplish this compelling state interest. This is called a “strict scrutiny” test.

So the first question is: What is UT’s interest in having a race-conscious admissions policy, and is it compelling?

It’s helpful to know how UT considers race in admissions. UT’s admissions policy is a unique hybrid. By Texas statute, 75% of the student positions for each freshman class at UT are automatically filled by students who graduated within the top ten percent of their high school classes. For the remaining 25%, UT uses a “holistic review” admissions process based on an applicant’s academic index (AI) – a combination of the candidate’s SAT score and high school GPA – and an applicant’s personal achievement index (PAI). The PAI consists of points assigned based on the applicant’s essay, leadership and work experience, extracurricular activities, community service, and other “special characteristics,” one of which can be race or ethnicity. An admissions officer combines an applicant’s AI index and PAI index and, if the applicant’s combined index is higher than a set cut-off score, the applicant receives an admissions offer. So race is really considered as a factor of a factor.

Compelling State Interest: Diversity Within the Student Body
UT claims it has a compelling interest in giving its students the educational benefits that come from learning in a diverse student body. In earlier cases, the U.S. Supreme Court has found that diversity in the student body may be a compelling state interest. Justice Powell in the Regents of the University of California v. Bakke decision said that, while using a quota system to admit a certain number of students of a certain race is unconstitutional, some consideration of race for the purpose of achieving a diverse student body could be constitutional.

Then in 2003, in Grutter v. Bollinger, Justice O’Connor, writing for the Court, confirmed that the University of Michigan Law School had a compelling interest in attaining a diverse student body and deferred to the Law School’s claim that a diverse student body is essential to achieving its educational mission. In recognizing the importance of diversity, the Court didn’t mean just racial and ethnic diversity. The level of diversity that justifies a compelling state interest must include a wide range of qualifications and characteristics; race or ethnicity should be only one element of diversity.

In the Fisher case, Justice Kennedy, speaking for the majority of the Court, found that UT met the standard for proving a compelling interest by articulating a clear goal that the institution expects to achieve in obtaining student diversity: An educational environment that fosters cross-racial understanding, provides enlightened discussion and learning, and prepares students to function as leaders in a diverse workforce and society. UT conducted a study that showed that its previous admissions policy, which did not include consideration of race, did not achieve a level of student body diversity that was sufficient to meet the goal.

Race Consideration Narrowly Tailored to Achieving Student Body Diversity
After finding a compelling state interest, the next question is whether the way in which UT considers race is narrowly tailored to achieve student body diversity. UT had to show that its consideration of race in admissions was designed to and did increase diversity without having extraneous effects such as unduly burdening a non-favored race.

The Court found that UT’s use of race in admissions is narrowly tailored to achieving student body diversity because it is effective – after UT started using the race-conscious admissions policy, enrollment of African-American students and Hispanic students increased by 94% and 54% respectively. But, race actually made a difference in only a small number of admissions, so the plan was also narrowly tailored. Also, UT had tried other race-neutral means of achieving student body diversity that had not been successful.

The Court also held that, to ensure that UT’s race-conscious admissions policy continues to be narrowly tailored, UT must continually study the data on admissions and student-body demographics to ensure effectiveness. And UT must discontinue considering race in student admissions as soon as it is no longer needed to achieve diversity in the student body.

Colorado’s Perspective
While it is constitutional to consider race to achieve a diverse student body, many states have passed laws that prohibit any consideration of race in higher education admissions. In 2008, Colorado voters rejected Amendment 46, which would have amended the state constitution to prevent the government from giving any preferential treatment to a person on the basis of race, including in the context of higher education admissions.

At this time, it appears the University of Colorado is the only public institution of higher education in Colorado that considers an applicant’s race in making admissions decisions. The University of Colorado uses a holistic review process similar to that used by UT, which includes limited consideration of race to achieve a diverse student body.