Much of the attention surrounding the Supreme Court affirmative-action cases has focused on whether respondents Harvard and the University of North Carolina discriminate against Asian-American students, and on petitioner Students for Fair Admissions’ (SFFA) insistence that the Court overturn Grutter v. Bollinger, which allowed university admissions officials to use racial preferences in the first place. But observers should redirect some attention to a mostly forgotten dissent penned by Justice Samuel Alito in Fisher v. University of Texas at Austin. This opinion may inform the majority’s reasoning in the Students for Fair Admissions cases next summer.

In Fisher, the justices examined a challenge to the University of Texas’s undergraduate admissions program. Adopted after the Supreme Court greenlit racial preferences, the program considered race as one of several factors when determining which applicants to admit. Specifically, it included race within a candidate’s “Personal Achievement Index” (PAI)—a metric admissions officials created to measure the candidate’s “potential contribution to the University” and used in conjunction with his or her test scores and academic performance in high school. (The university uses this admissions program alongside the Texas state legislature’s Top 10 Percent Plan, which grants all students in the top 10 percent of their class at a Texas high school automatic admission to any public state college.) Admissions officials justified their use of race by appealing to a 2004 study that the university had conducted of small undergraduate classes—few of which, the study showed, had significant minority enrollment. Officials concluded that the university “lacked a ‘critical mass’ of minority students and that to remedy the deficiency it was necessary to give explicit consideration to race in the undergraduate admissions program.”

Abigail Fisher, who is white, applied for admission to the university and was rejected. She subsequently sued, contending that the school’s reliance on racial preferences in admissions violated the Equal Protection Clause of the Fourteenth Amendment. Both the District Court and Fifth Circuit Court of Appeals found in favor of the university, but the Supreme Court never reached a decision. Instead, a majority of the justices sent the case back to the Fifth Circuit for a do-over, explaining that in affirming the District Court’s decision, the lower court hadn’t held the university to the “demanding burden of strict scrutiny.”

As the name suggests, strict scrutiny is the most stringent standard of judicial review used to evaluate the constitutionality of a law or government policy. To withstand it, the law or policy at issue must be “narrowly tailored” to further a “compelling government interest.” Because racial classifications—including the use of racial preferences in higher education admissions—can be abused, courts always review them using strict scrutiny.

For a university’s race-conscious admissions policy to pass muster, then, it must meet two criteria. First, it has to be geared toward the attainment of a diverse student body, as this is the only legally permissible interest for a university to use racial preferences. Second, per Grutter, the policy must “remain flexible enough to ensure 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.” While the Court admitted that some deference is owed to the university’s “educational judgment that such diversity is essential to its educational mission,” it also made clear that a reviewing court must ensure a “reasoned, principled explanation” lies behind the university’s adoption of racial preferences, and that it is “specifically and narrowly framed” to achieve the university’s alleged interest in racial diversity.

The Court sent the case back in 2013, finding that the Fifth Circuit failed to conduct such an analysis before ruling in the University of Texas at Austin’s favor. Three years later, after a more thorough investigation and another favorable ruling, the Court heard the case again. This time, it decided that the university’s consideration of race in admissions was consistent with strict scrutiny and therefore permissible.

The majority’s explanation was simple. In making its case, the university had said all the right things—that it was seeking only to further the diversity of its student body; that this interest was based on an old, but not too old, study showing that certain classes at the university lacked significant minority enrollment; and that race was just one factor among many that the university considered when deciding whether to admit an applicant.

Alito disputed all this. In a dissent joined by justices John Roberts and Clarence Thomas, he argued that it was not enough for the university merely to say that such a program would lead to student-body diversity and its accompanying educational benefits. The university had to demonstrate this, presumably through some sort of quantitative analysis. To require anything less of an admissions office, Alito concluded, would be to give it complete deference in its consideration of race, something that the majority itself had said the Court could never do. Since the University of Texas hadn’t empirically shown that its use of racial preferences would increase minority enrollment in the classes that lacked it or deliver educational benefits, this policy could not, according to Alito, pass strict scrutiny. Thus, it couldn’t be considered constitutional.

Alito’s reasoning applies equally well to today’s cases. Harvard and the University of North Carolina have done little to justify their use of racial preferences other than repeat the same old platitudes. Neither, for example, has made any attempt to prove that their consideration of race in admissions has led to greater minority participation in the areas of campus life from which such participation is most absent. Neither makes any convincing case for the alleged educational benefits of diversity. Despite having used racial preferences for decades, Harvard and the University of North Carolina have never cared to find out whether this policy even works, or when they will cease to need it.

Have these schools met the heavy burden of strict scrutiny placed on them by the Equal Protection Clause? Alito isn’t likely to be persuaded; the remaining justices will provide a definitive answer this summer.

Photo by OLIVIER DOULIERY/AFP via Getty Images


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