Supreme Court to Revisit Issue of Race as Factor in Higher Education Admissions

Supreme Court to Revisit Issue of Race as Factor in Higher Education Admissions

Neal H. Hutchens
University of Kentucky

The permissibility of race-conscious admissions policies in higher education has once again taken legal center stage, with the U.S. Supreme Court having accepted Fisher v. University of Texas at Austin (2011) for review. In Fisher, the Supreme Court will consider arguments that a law guaranteeing acceptance to a Texas university for students graduating in the top 10% of their high school class negates the need for using race in any admissions decisions at the University of Texas at Austin. Previously, in Grutter v. Bollinger (2003), the Supreme Court upheld a race-conscious admissions program at the University of Michigan School of Law. In this case, the Court held that the law school could consider race, along with many other factors, in seeking to attain the educational benefits that come from having a diverse student body.

Grutter was greeted by supporters of affirmative action in higher education as a legal victory. But the legal standards approved in the case now face an uncertain future. Having accepted Fisher for review, the Supreme Court again appears poised to consider the extent to which a public college or university may rely on race in admissions. Grutter was decided five to four by a sharply divided Court. Changes in the Supreme Court’s membership since the Grutter case have resulted in uncertainty regarding the extent to which the legal standards announced in the decision will remain intact.

A noteworthy change to the Supreme Court is the departure of Justice Sandra Day O’Connor, author of the majority opinion in Grutter and a key swing vote in the case. Since assuming Justice O’Connor’s seat, Justice Samuel Alito has joined opinions disfavoring governmental reliance on racial classifications. Some Supreme Court observers believe enough votes now exist to overturn or substantially restrict the use of race in admissions approved of in Grutter (Carey, 2012; Liptak, 2012). A probable supporter of the university’s policies, Justice Elena Kagan, has also decided not to take part in the decision, likely because of her previous involvement with the Fisher litigation while serving as the Solicitor General of the United States. Put simply, the mix of key decision-makers on the current Supreme Court presents questions regarding future legal limitations on affirmative action.

Overview of Fisher v. University of Texas at Austin

In Fisher v. University of Texas at Austin, white, Texas residents not selected for admission to the university argue that the institution should not be able to use race as a factor in admissions decisions. The applicants contend that the university should be precluded from including race in any admissions decisions because of the success of a legislatively mandated plan, the Top Ten Percent Law, which assures Texas students graduating in the top 10% of their high school class admission into a public university in the state. The rejected applicants argue that implementation of the plan has resulted in sufficient enrollment of underrepresented student populations to negate the consideration of race by the university in admissions decisions not made under the Top Ten plan. Both a federal trial court and the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the university. The courts held that the challenged admissions practices represented an appropriate consideration of race in institutional efforts to enhance student diversity in alignment with the legal framework approved of in Grutter.

The standards challenged in Fisher applied to only a limited percentage of admissions decisions by the university. As noted in the Fifth Circuit’s opinion, the overwhelming majority of slots were filled using the Top Ten plan, accounting for 81% of the overall slots awarded for the 2008 entering class and for 88% of the seats allotted to Texas residents. Accordingly, the vast majority of Texas residents admitted to the university were accepted through the Top Ten plan.

For admissions decisions for Texas residents not made using the percentage plan, race constituted one of multiple factors that could be considered in an application. For this group of applicants, the university calculated a Personal Achievement Index (PAI), which was based on three scores. Two of the scores were based on evaluation of an applicant’s essays. The third score—the personal achievement score—was given slightly greater weight than the other two scores; it was determined by holistic consideration of an applicant’s achievements, experiences, and background. As part of the personal achievement score, evaluators could consider a “special circumstances” element that could reflect “the socioeconomic status of the applicant and his or her high school, the applicant’s family status and family responsibilities, the applicant’s standardized test score compared to the average of her high school, and—beginning in 2004—the applicant’s race” (Fisher, 2011, p. 228).

In considering the admissions practices at issue, the Fifth Circuit pointed out that the university was not relying on some type of quota system, which would not pass legal scrutiny. The court explained that no single factor in admissions decisions, including race, was considered on a separate basis from other criteria or given any kind of specific numeric value. Instead, evaluators considered all factors in a holistic manner, with each application given individualized consideration. The court observed that, if constituting a factor at all in a particular admissions decision, “race ha[d] the potential to influence only a small part of the applicant’s overall admissions score” (Fisher, 2011, p. 228).

The applicants challenging the university’s admissions procedures have argued that the success of the Top Ten Percent Law provided a race-neutral alternative that negated the need for the university to consider race in any of its admissions decisions. The university has countered with studies demonstrating that reliance on the percentage plan alone failed to result in the enrollment of a critical mass of underrepresented students and left many courses with very few to no underrepresented students enrolled.

In challenging the university’s admissions practices that permitted consideration of race, the denied applicants looked to support from a post-Grutter Supreme Court case involving firefighters where the Court rejected a city’s invalidation of a test used for promotions (Ricci v. DeStafano, 2009). The Fifth Circuit responded in Fisher that the Supreme Court had not retreated from the standards announced in Grutter regarding the use of race as a permissible factor in admissions by public colleges and universities.

Grutter v. Bollinger and Permissibility of Race as Factor in Admissions

In Grutter v. Bollinger (2003), a five to four decision, the Supreme Court held that public higher education institutions are permitted to consider race as one of multiple factors in admissions in order to realize the educational benefits of diversity. The case involved an applicant to the University of Michigan School of Law who challenged the school’s admission policy, which considered race as one of many possible admissions factors. The law school’s criteria required admissions officials to provide individualized consideration to each application. While undergraduate grades and standardized test scores constituted important factors for consideration, the law school policy did not guarantee or reject particular applications solely on these standards. Instead, the admissions policy considered a number of other criteria that would contribute to an entering class’ diversity, including in relation to race and ethnicity.

Five justices in Grutter concluded that the law school’s admissions system was constitutional. In a companion case, Gratz v. Bollinger (2003), the Supreme Court invalidated an undergraduate admissions program at the University of Michigan, declaring that it did not provide individualized consideration of applicants’ files and mechanically included race as a factor in admissions.

Justice O’Connor, writing the majority opinion in Grutter, began her analysis by noting that governmental classifications relying on race are subject to strict scrutiny, a rigorous standard of legal review. Under this standard, the use of race in admissions had to be narrowly tailored to further a compelling governmental interest. The opinion stressed that all governmental classifications, even those seeking to benefit minority populations, are subject to strict scrutiny.

A majority of justices in Grutter accepted the argument that the law school’s use of race in admissions to obtain the educational benefits of diversity constituted a compelling governmental interest. In accepting this position, the Court adopted the diversity rationale advanced by Justice Lewis Powell in Bakke v. Regents of the University of California (1978) that had failed to garner the support of a majority of justices. In approving of the educational benefits of diversity as constituting a compelling governmental interest, the Court in Grutter also noted the special deference that has been shown by courts to colleges and universities in the context of educational matters.

Having accepted that the educational benefits of diversity constituted a compelling governmental interest, the Supreme Court in Grutter also held that the law school’s use of race was narrowly tailored. The opinion discussed that race comprised only one of many possible factors considered in admissions decisions in relation to assembling a diverse class. Applicants’ files also received individualized, holistic evaluation. The majority deemed it relevant as well that, while seeking to enroll a critical mass of underrepresented students in pursuit of the educational benefits of diversity, the law school did not rely on any kind of strict percentages that would constitute a quota system.

Post-Grutter School Assignment Cases

The Supreme Court revisited the issue of using race in admissions in a pair of consolidated cases decided post-Grutter that involved school assignment plans at the elementary and secondary education levels (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). The cases dealt with challenges to student assignment plans voluntarily adopted by school districts in Seattle, Washington, and Louisville, Kentucky. In both cases, a majority of the court rejected the legal permissibility of the plans.

Chief Justice John Robert’s opinion for the majority in Parents Involved stated that in Grutter the Supreme Court emphasized that each student received individualized consideration. The majority in Parents Involved determined that the school assignment plans under consideration failed to give this same kind of individualized consideration. Near the conclusion of his opinion in Parents Involved announcing the Court’s judgment, Chief Justice Roberts, arguing against the permissibility of the school assignment plans, stated that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race” (Parents Involved, 2009, p. 748). While his opinion noted that Grutter involved special concerns related to higher education, the Parents Involved decision indicates that a current majority of the Court may greet any race conscious programs with heavy skepticism.

Supreme Court’s Review of Fisher Leaves Grutter Standards in Doubt

The Supreme Court’s decision to review the Fisher case means that Grutter’s legal legacy may prove relatively brief. Accordingly, what can be viewed as the rather limited use of race in higher education admissions permitted in Grutter now faces an uncertain future. Fisher may mark the end point of a judicial pattern in recent decades characterized by an overall resistance to allowing race as a legally permissible factor in higher education admissions to serve social justice and equality goals.

As noted, the majority in Grutter looked approvingly to Justice Powell’s opinion in Regents of the University of California v. Bakke (1978) that advocated the educational benefits of diversity as a permissible reason to include race in admissions. A dissenting opinion in Bakke by Justice William Brennan and joined by three other justices shows a constitutional road not taken in relation to the use of race in higher education admissions. In this opinion, Justice Brennan argued for more lenient judicial review of racial classifications under certain circumstances. He argued that, rather than the highest level of judicial scrutiny (strict scrutiny), the kind of admissions program at issue in Bakke should have been subjected to intermediate scrutiny. His opinion contended that courts should distinguish between governmental racial classifications meant to benefit racial minorities and to address a legacy of racism in the United States versus classifications that sought to discriminate against racial minorities.

Justice Brennan’s argument that governmental uses of race meant to benefit minority groups should receive an intermediate level of judicial scrutiny did not prevail. In a series of cases, the Supreme Court eventually determined that all racial classifications should be subject to strict scrutiny. Furthermore, the Supreme Court made it clear that in seeking to remedy past and ongoing discrimination, a racial classification had to be aimed at redressing specific acts or instances of discrimination rather than seeking to address general societal discrimination. Accordingly, Grutter was decided in the context of previous decisions that had already greatly restricted instances when the government could use race to benefit minority groups.

Moses and Chang (2006) discuss how an emphasis on the “diversity rationale” in higher education, including in judicial decisions, has “weakened the justification for race-conscious admissions based on corrective or distributive justice” (p. 9). As they point out, while “broader justice concerns” are not completely distinct from the diversity rationale, such an “interest appears at best to be indirect” (Moses & Chang, 2006, p. 9). Moses and Chang’s concern with an overemphasis on the diversity rationale highlights how, from one perspective, the Grutter decision marked a rather modest and somewhat narrow legal approval of the use of race in public higher education admissions. Now, with the Supreme Court set to review Fisher v. University of Texas at Austin, even the continued legal permissibility of this limited use of race in public higher education admissions appears in doubt.

Discussion Questions

  • Does your institution use race-conscious admissions policies of the kind authorized in the Grutter decision? If so, what would be the impact on admissions at your college or university resulting from a Supreme Court ruling that prohibits or restricts such race-conscious policies?
  • Does your state or university have race neutral admissions policies that are intended to achieve greater diversity in admissions? What effect do these policies have on your admissions outcomes?
  • How does your college or university interpret the concept of “critical mass?” What kinds of data collection initiatives are used to evaluate your institution’s degree of success in achieving a “critical mass” of students from underrepresented populations?


Carey, K. (2012, March 4). Commentary: Justice and equity are on the line in ‘Fisher v. Texas.’ The Chronicle of Higher Education.

Fisher v. University of Texas at Austin, 631 F.3d 213 (5th Cir. 2011), cert. granted, 2012 WL 538328 (Feb. 21, 2012).

Gratz v. Bollinger, 539 U.S. 244 (2003).

Grutter v. Bollinger, 539 U.S. 306 (2003).

Liptak, A. (2012, February 7). Justices take up race as a factor in college entry. The New York Times. Retrieved from

Moses, M.S., & Chang, M.J. (2006). Toward a deeper understanding of the diversity rationale. Educational Researcher, 35(1), 6-11.

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).

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

Ricci v. DeStafano, 129 S. Ct. 2658 (2009).

About the Author

Neal H. Hutchens is an assistant professor in the Department of Educational Policy Studies and Evaluation at the University of Kentucky. His research focuses on legal issues arising in higher education.

Please e-mail inquiries to Neal H. Hutchens.


The ideas expressed in this article are not necessarily those of the Developments editorial board or those of ACPA members or the ACPA Governing Board, Leadership, or International Office Staff.

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