The U.S. Supreme Court decisions in Grutter v. Bollinger, which upheld the use of race in college admissions, and Fisher v. University of Texas, which ultimately changed the way in which race can be used in admissions decisions, were delivered only a decade apart.
However, the landscape surrounding both cases bare significant differences.
Scott Greytak, an attorney at Campinha Bacote LLC, lays out the differences between these two cases in The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v. University of Texas, making key points surrounding the Supreme Court justices’ decisions, the operative language of the cases, and suggestions to move forward.
Musical Chairs on the Bench
The decade between the two decisions witnessed a sea of change in opinion. In the time between Grutter and Fisher, four justices have switched sides, going from majority to minority, or vice versa.
According to Greytak, the Fisher decision can be seen as “a novel and potentially viable means of dismantling race-conscious admissions policies through its reformation of the Grutter standard.” Furthermore, when reviewing the words of Justice Anthony Kennedy, who wrote and delivered the majority opinion in Fisher, it is no coincidence that the ruling in Fisher sought to do that.
Justice Kennedy has never voted (0 for 4) to uphold any affirmative action policy in the more than twenty-five years he served the Court. His previous opinions in cases such as Grutter and Parents Involved in Community Schools (PICS) foreshadow his decision in the Fisher case.
Kennedy made it clear he prefers race-neutral alternatives as opposed to race-based ones in Grutter through his dissenting opinion—expressing how the Court’s refusal “to employ true strict scrutiny takes pressures off of universities to ‘seriously explore race-neutral alternatives.’”
Skipping four years later to PICS, Kennedy states that “individual racial racial classifications may be considered only if they are a last resort to achieve a compelling interest.”
Mission Versus Admission
The Court approaches its diversity cases in two distinct ways—applying mission deference and admission deference. When the cases of Grutter and Fisher are compared, there is a difference in the operative language used.
Mission deference refers to whether or not the educational benefits of diversity are essential to a university’s educational mission.
Grutter provided universities with deference to diversity as an essential part of their educational plans. However, Fisher decided the choice to pursue diversity is “an academic judgment to which some, but not complete, judicial deference is proper,” which must be followed by a “reasoned and principled” explanation.
Admission deference refers to whether the particular admissions policies used are, in practice, narrowly tailored to obtain the educational benefits of a diverse student body.
In the Grutter decision, the Court essentially took the law school’s word that no race-neutral alternatives existed; however, Fisher held that “[The] university receives no deference” on whether race-neutral strategies will suffice.
The Grutter decision stated that narrow-tailoring requires “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks”; on the other hand, the Fisher decision held that narrow-tailoring requires “demonstrat[ing], before turning to racial classifications, that available, workable race neutral alternatives do not suffice.”
The ability to consider race-neutral alternatives has evolved into requiring colleges and universities to demonstrate that race-neutral alternatives do not work, changing the whole landscape of using race as a factor in admissions decisions.
Fisher has likely made it easier for opponents of race-conscious admissions policies to succeed in court.
How Colleges Can Comply with Fisher
Colleges and universities may now find themselves wondering how they can comply with the Fisher decision considering that the constitutionally sound admissions plans the Court imagines lack a clear legal architecture.
In The Future of Affirmative Action, Greytak leaves three suggestions for colleges and universities seeking to comply with the Fisher decision:
1. Show your work throughout the entire process. This includes maintaining a chronological, written record of your diversity goals, the benefits you believe diversity will offer, and the race-neutral alternatives that you considered.
2. Incorporate evidence as available, including demographic trends, your past experiences with previous goals, plans and alternatives, and anecdotal student and faculty experiences.
3. Apply exacting, comparative analyses throughout, drawing from internal and external resources. To this extent, consider engaging an outside contractor or a trusted advisor to lead or review your process. Experienced consultants should be able to provide objective, vetted expertise, along with guidance informed by best practices. On balance, they should be able to review all available, workable, race-neutral options to see if your college or university can achieve critical mass without resorting to race-conscious policies.