The U.S. Supreme Court issued its long-awaited affirmative action decision in Fisher v. University of Texas at Austin (U.S. 2013). The Court was presented with the issue of whether the University of Texas’s consideration of race as one of many “plus factors” in an admissions program violated the Equal Protection Clause of the U.S. Constitution. The Court held, 7-1, that the consideration of race must serve a compelling government interest. The Court agreed the educational benefits that flow from a diverse student body are a compelling interest. But held that the University must prove that the means it chose to attain diversity were narrowly tailored to its goal of achieving these benefits. Further, the University must demonstrate that the admissions process ensures that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The Court said that its task was to independently verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. And, the Court must be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. Because the lower court did not apply the correct standard of review, the case was remanded.
Although this decision is about admissions policies of institutions of higher education, it was eagerly anticipated by federal-contractor employers as well. Since federal contractors are required to recruit from a diverse pool and are never permitted to consider race in making employment decisions, Fisher does not appear to alter their affirmative action obligations. However, the case has stirred a lot of discussion about affirmative action that will continue until the Court’s next term when it will review another affirmative action case, Schuette v. Coalition to Defend Affirmative Action. The issue in Schuette is whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions. Stay tuned for any further developments.