Fisher v. University of Texas

SUNY Analysis of Fisher v. University of Texas

The State University of New York Office of General Counsel's Analysis of Issues in Fisher v. Texas, Vance v. Ball State University, and University of Southwestern Medical Center v. Nassar

Fisher v. University of Texas

By Bill Howard

Access, completion and success are three key goals of SUNY’s mission to serve students.   And it all starts with access. Although we like to think that there is at least one good place among SUNY’s 64 campuses for every qualified New Yorker who wishes to engage in higher education, it is certainly true that not every aspiring student can have a place at each of the institutions.  Thus, at least since Bakke v. University of California Board of Regents in 1978, and on to Grutter and Gratz v. University of Michigan in 2003, who gets in to certain institutions and what criteria are used for admissions purposes have been questions of supreme importance here at SUNY as across the country.  This special edition of the General Counsel Update is intended to bring you the latest news and advice on this topic, in light of the Supreme Court’s most recent foray into affirmative action in higher education admissions, its decision in the case of Fisher v. University of Texas.

Fisher Upholds Diversity for Institutions: Requires Strict Review of Path to Diversity

By Joseph Storch, Andrea Stagg, Jean Sampson, Nedra Abbruzzese-Werling

On Monday, the United States Supreme Court issued its much anticipated decision in Fisher v. University of Texas.  The case involved a rejected student bringing suit against the University of Texas at Austin, alleging that the University’s consideration of race in admissions violated the Equal Protection Clause.  While the Supreme Court did not rule specifically on the merits of the University’s admissions plan, the Court prescribed a set of rules which must be applied by the Appeals Court to which the case was remanded. In doing so, the Court laid out two important steps which any college or university must take in order for a race-conscious admissions plan to meet constitutional scrutiny:

Step 1:  Diversity as a constitutionally permissible goal:

The Supreme Court reaffirmed its opinion in Grutter v. University of Michigan that “the attainment of a diverse student a constitutionally permissible goal for an institution of higher education.”  SUNY colleges and universities have uniformly pursued admissions policies with the underlying belief that a diverse student body is desirable for all students, since diverse classrooms, residence halls, and college activities expose students to other students with differing backgrounds, cultures, opinions, and ideals.   The Court today affirmed that courts should defer to the judgment of colleges such as SUNY in making such a determination, so long as there is a reasonable basis for this determination.  That is to say, it is not the job of a reviewing court to second-guess a SUNY college’s decision to set a goal of a diverse student body and the judgment that diversity is “essential to [an] educational mission is one to which [courts] defer.”  Still, the Court declined to give complete deference to the University, stating that “[a] court, of course, should ensure that there is a reasoned, principled explanation” for the decision to “pursue the educational benefits that flow from student body diversity.”

Step 2:  Race-Conscious Steps Taken to Achieve the Goal Must be Narrowly Tailored:

Once a reviewing court determines that the goal of diversity is consistent with strict scrutiny, that court can then turn its attention to the admissions process and its implementation.  The question a university or college may be asked to answer is:  are the means chosen by the institution to obtain diversity narrowly tailored to attain that goal?  A narrowly tailored admissions program evaluates applicants as individuals; race may not be used as a “defining feature” of an application.

To prove whether a program is narrowly tailored, the Supreme Court ruled that a college must also be able to show that the same goal could not be equally achieved by a process that is race-neutral.  The Court quoted past cases to assert that if “a nonracial approach...could promote the substantial interest about as well and at tolerable administrative expense,...then the university may not consider race.”

The Court clarified that colleges need not “exhaust...every conceivable race-neutral alternative,” but the University has the ultimate burden of proving to the reviewing court that “available, workable race-neutral alternatives do not suffice.”

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Implications of Fisher for Other University Functions:

Our analysis is that this case does not break new ground in the areas of employment (see the sections of Nassar and Vance below) or in the area of student scholarships.

Next Steps for Fisher:

At this point, the Supreme Court has vacated the decision of the Fifth Circuit Court of Appeals, and remanded the decision for further consideration by the lower courts.  The Court found that in reviewing the University of Texas admissions program, the lower courts were properly deferential in regards to Step 1, but improperly deferential in regards to Step 2.  The Court makes the point that the Michigan cases, Grutter and Gratz, were decided after the benefit of a trial, through which important facts about the methods used to achieve a diverse student body were elucidated.

While the future path of this case cannot be known with certainty at this time, one possibility is for the case to end up with a trial in which the plaintiff Abigail Fisher and the University of Texas will each have an opportunity to show whether method used by the University to admit students meets constitutional scrutiny and whether the achievements of this program could equally be achieved through a system that takes no account of race.  Following such a trial and inevitable appeals, it would not be surprising if this case makes a return to the Supreme Court docket.  The case may also be decided again by the Fifth Circuit Court of Appeals without a trial.  Either way, while the trial court and any resulting Fifth Circuit Court of Appeals decisions are not binding on the State University of New York (rather they are considered persuasive to courts in our jurisdiction) today’s ruling and any further pronouncements from the Supreme Court are binding on SUNY.

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Statement of the State University of New York, SUNY Office of Communications

Today, the US Supreme court issued a significant  decision affecting affirmative action and diversity in higher education.

It will take additional time to fully understand the impact of the decision on SUNY and its effect on the manner in which SUNY recruits and admits students.  However, it is clear that the 7-1 decision in Fisher v. University of Texas does provide positive news for institutions of higher education such as SUNY that strive to achieve student body diversity. The Court today confirmed that diversity remains a compelling government interest and that a holistic approach to consideration of applicants for admission is still viable as long as it is done in accordance with the Supreme Court’s standards.  While academic preparation is the primary factor for admission at SUNY, there are many other aspects of a prospective student’s background that are taken into consideration by SUNY campuses when evaluating a student’s application for admission. These may include community service, musical or artistic ability, athletics, family history and financial circumstances, to name a few.  We have been very successful in our efforts to recruit a diverse student body because of our broad recruitment strategies, the access we provide to a wide variety of academic programs throughout the state and the welcoming atmosphere our campuses provide.

SUNY will continue its efforts to achieve diversity because this goal assures that, across the board, the students and staff will be afforded the opportunity to hear a broad range of views points and perspectives thus enlarging their educational experience and allowing them to develop an expanded range of contacts and life experiences -- the contacts and experiences that will be needed in a marketplace that has become increasingly global and which can only be navigated through exposure to widely diverse people, cultures, ideas, and viewpoints. Diversity is a core value referenced repeatedly in SUNY’s Strategic Plan and will continue to be a driving force in all of SUNY’s activities.

SUNY will continue to use multifactored educational approaches in its recruitment and selection of students consistent with the precedent and standards set down by the US Supreme Court.

What the Fisher Decision Means for SUNY

By Jean Sampson and Joseph Storch

Today’s Supreme Court decision, although narrow, should be considered a positive result for SUNY colleges.  The Court, without much comment, reaffirmed an important tenet of the Michigan affirmative action cases: that colleges, such as SUNY, may legitimately consider race as one factor in a holistic review of candidates applying for admission, and that such consideration, if handled properly, meets the test for constitutionality.

However, with respect to the practices used to implement the goal of a diverse student body, courts in the future after Fisher will be much more invasive in requiring that colleges, including those in the State University of New York, prove that any plan to achieve such a goal is narrowly tailored.  For more in-depth analysis, see the sections below called Spotlight: Review of Admissions Practices at SUNY Colleges; Spotlight: Undergraduate Admissions; and Spotlight: Graduate Admissions.  These sections provide specific guidance on the next steps each SUNY college and university should be undertaking following upon this decision.

Spotlight: Review of Admissions Practices at SUNY Colleges

By Joseph Storch and Jean Sampson

Each SUNY admissions office, whether undergraduate, graduate or professional, should conduct a review of the standards outlined by Fisher in moving forward following the decision.  This would involve continuing to validate that there is strong reasoning for the determination that diversity continues to be essential to a campuses’ educational mission.  Once that determination is affirmed, a campus would have to evaluate the processes it currently uses in light of Fisher.  A campus must be able to establish that no workable race-neutral alternatives would produce the educational benefits of using race.  Thus, the burden is on a campus to consider other alternatives and demonstrate that they do not produce similar results.  Alternatives that a campus might analyze could include consideration of socioeconomic status, the implementation of outreach programs and educational assistance programs, consideration of a potential student’s demonstrated ability to overcome disadvantage or other impediment, partnerships with low-performing schools, expansion of advanced placement programs and increased efforts to educate students about the application process and applying for financial aid.

SUNY colleges and universities should establish or continue a special committee to make this review.  In consultation with representatives from the Office of General Counsel and other appropriate college-wide and system-wide professionals, each campus should endeavor to review the following:

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Spotlight: Undergraduate Admissions

By Ann Williams

A college is not permitted to merely state that its admissions procedure uses race in a permissible way.  Rather, a reviewing court must closely examine how the admissions procedure works in practice and a college must be able to prove 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 that individual’s application.

Thus it is important for each SUNY campus that has designed its admissions program based on the Grutter decision to be able to articulate what “diversity” means for its campus and the benefits that diversity will bring to the educational experience at its particular campus.  Individual campuses must also be able to demonstrate that race-neutral alternatives are not workable and do not produce the educational benefits that result from enrolling a diverse student body.

Finally, individual campuses must be able to satisfy a court that an admissions procedure takes into account a number of factors when evaluating an undergraduate application, such as fluency in a foreign language, having overcome personal and/or family hardship, a record of community service, and/or travel abroad, and that race or ethnicity is just one important element that is taken into consideration when making undergraduate admissions decisions.

Spotlight: Graduate and Professional School Admissions

By Winthrop Thurlow

The Fisher case deals with a challenge to the undergraduate admissions program in place at the University of Texas.  However, nothing in the Supreme Court’s decision limits its ruling to undergraduate programs.  Consequently, admissions criteria for graduate and professional degree programs should also be reviewed in light of Fisher to ensure that these admissions procedures comport with the requirements articulated by the Court in this decision.

Admissions criteria for graduate and professional degree programs often reflect specific requirements imposed by accreditation bodies, and those requirements are frequently aimed at increasing and/or encouraging student diversity.  Accreditation bodies differ depending on the profession, but some require that institutions identify with specificity the areas of diversity that are of import to the institution and require detailed information on plans to reach those goals.  While nothing in the Fisher decision alters those accreditation requirements, the Court’s ruling does suggest that attempts to comply with accreditation requirements will face the same scrutiny as other admissions criteria.  In other words, admissions criteria directed at satisfying these requirements will be subject to the same review as all other admissions decisions.

In addition to specific admissions criteria aimed at satisfying accreditation requirements, the generally smaller size of many graduate and professional degree programs means that individual acceptance decisions can have a significant impact upon the overall diversity of a particular program.  As a result, many of these programs have admissions criteria that reflect this reality.  The Fisher decision clearly reiterated the Court’s earlier rulings that while race remains a permissible factor to consider as part of a holistic view of a candidate’s application, the courts will impose particular scrutiny on decisions that use race to achieve racial balance.

Concurring and Dissenting Opinions in Fisher

By Andrea Stagg, Will Versfelt and Joseph Storch

The decision in Fisher was 7-1 with only Justice Ginsburg disagreeing with the decision of the Court.  A concurring opinion is written by a Justice who agrees with the outcome of the case but not necessarily with the route to that outcome.  A dissenting opinion is written by a Justice who disagrees with the outcome and the reasoning.  The opinions are not binding or law, but we include them because as the court’s composition changes over time, a concurring or dissenting Justice may take the lead on a future, similar case.

Justice Scalia writes in his brief concurrence to remind readers that he would rather overrule Grutter and find that a “compelling interest” does not justify the use of race in admissions, but that was not the question in this case.

Justice Thomas writes a lengthy concurrence to emphasize that he would overrule Grutter altogether.  He draws on historical examples to conclude that a state’s use of race in higher education admissions decisions can never satisfy strict scrutiny as required by the Equal Protection Clause.

Justice Ginsburg dissents to say that she would affirm the Fifth Circuit’s decision because the University of Texas did not use an impermissible quota system and used the Grutter model.  She is in favor of considering the effects of this country’s “overly discriminatory past” and “centuries of law-sanctioned inequality.”  Noting the segregation that exists in Texas school districts, Justice Ginsburg chides those who identify the Texas Top Ten Percent Law and the race-blind holistic review as race-neutral alternatives, writing that “[o]nly an ostrich could regard [these options] as race unconscious.”  She prefers institutions that candidly disclose the consideration of race to those that mask it.

Fisher Opinion of the Supreme Court:

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Vance v. Ball State University

Vance Clarifies Interpretation of Who is a Supervisor

By Joseph Storch and Jim Jarvis

June 24 was a banner day for Supreme Court decisions involving colleges and universities.  While Fisher draws the headlines, Vance v. Ball State will also impact the practices of our SUNY campuses, particularly in the employment context.

Maetta Vance was a food service worker at Ball State, a public college in Indiana.  She complained about discriminatory actions by a fellow employee who had "leadership" responsibilities, including directing employees in the kitchen, but “did not have the power to hire, fire, demote, promote, transfer or discipline Vance.”  Vance filed internal complaints and EEOC complaints.  When the issues were not resolved, she filed a federal lawsuit.

The Supreme Court in the past has articulated two different standards for review of discrimination in the workplace:

Under these rules, it is obviously important whether an alleged harasser is a “supervisor” or merely a co-worker.  The definition of “supervisor” has been subject to different interpretations by the courts, and the Supreme Court has now attempted to provide clarity.  The Court ruled today that “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim (i.e. to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits’”).

The Court distinguished supervisors from those who merely have the “ability to direct another employee’s tasks.”  The Court found that direction ability to be “simply not sufficient,” reasoning that employees “of such powers are certainly capable of creating intolerable work environments...but so are many other co-workers.”  Employers will still be liable for the actions of co-workers who merely direct another’s tasks if they are negligent, i.e., the employer knew or should have known of discriminatory action, but failed to take prompt and appropriate remedial action.  

What the Vance Decision Means for SUNY:

By Jim Jarvis and Joseph Storch

The Supreme Court decision in Vance provides clarity on the question of when an employee is a supervisor, and thus, when the University will be subject to vicarious liability for the actions of a supervisor.

The Court’s decision represents a change in the definition of “supervisor” in New York.  The federal Second Circuit Court of Appeals, which covers New York, has counted as a supervisor anyone with authority to take tangible employment actions OR to direct an employee’s daily work activities.  Consequently, the Supreme Court’s new definition shrinks the number of employees who are “supervisors” for whom the University may be vicariously liable for discrimination.

The Vance case also serves as a reminder that, to avoid the imposition of vicarious liability for discriminatory conduct by supervisors, it is important to establish, publicize, and enforce anti-discrimination policies and complaint procedures, to train supervisors on their responsibilities with respect to unlawful discrimination, and to screen applicants for supervisory positions to determine if they have a record of discriminatory conduct.      

Vance Opinion of the Supreme Court:

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University of Texas Southwestern Medical Center v. Nassar

Nassar Clarifies the Standard for Proving Retaliation in Violation of Title VII of the Civil Rights Act Claims

By Seth Gilbertson, Mark Lemire, Ilijana Kalezic, Ruchira Podali

Title VII of the Civil Rights Act provides remedies to employees who can prove that they were harmed by discriminatory conduct by their employers.  Title VII also prohibits employers from retaliating against employees who use the law to pursue claims.  In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court discusses the level to which an employee must prove that the employer’s discriminatory or retaliatory conduct led to the harm he or she suffered.

The Court determined that in cases of status-based discrimination (i.e., discrimination on the basis of race, color, religion, sex or national origin), the wronged employee need only show that discrimination was a motivating factor that influenced the employer’s action.  However, when an employee seeks to recover on the basis that the employer retaliated against him or her for making a complaint of discrimination, a higher standard of causation must be proved.  In such retaliation cases, the employee must show that if the employer had not retaliated, he or she would not have been harmed.  

What The Decision in Nassar Means for SUNY:

By Seth Gilbertson, Mark Lemire, Ilijana Kalezic, Ruchira Podali

SUNY continues to follow a strict policy of never taking any adverse against anyone for pursuing relief from unlawful discrimination.  This policy of non retaliation applies regardless of the perceived merits of the claim or the forum in which it is being pursued.  Prior to taking any negative employment or other action involving an individual who has filed a claim or complaint of discrimination, campuses are encouraged to contact the Office of General Counsel.  While this case may mean that plaintiffs have a more difficult road in proving retaliation, the University Policy remains the same: we do not brook retaliation against employees who allege discrimination.

Nassar Opinion of the Supreme Court:

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The Supremes Translated

By Andrea Stagg and Joseph Storch

Concurring Opinion:  A concurring opinion is written by a justice who agrees with the outcome of the case but not necessarily with the reasoning that led to that outcome.
Dissenting Opinion:  A dissenting opinion is written by a justice who disagrees with both the outcome of the case and with the reasoning that led to that outcome.
Strict Scrutiny: The type of judicial review used by courts to determine whether laws (or government programs) that involve certain classifications, including race, are constitutional. In order to withstand strict scrutiny, the state must be trying to further a “compelling governmental interest” and the means must be “narrowly tailored” to achieve that interest.
Narrowly Tailored: This phrase is used by the courts to describe how the law or practice used to achieve the compelling governmental interest cannot be broad in scope, but must be particularly and specifically designed to achieve the intended ends.
Holistic Review:  The Supreme Court has looked with favor on review of all aspects of an applicant’s application for admission.  That is to say, a review of their grades, standardized tests, and other information (awards, leadership, participation in extra-curricular activities, but also race, gender and ethnicity) that may help an admissions officer determine if it is appropriate to offer admission.  The Court does not allow admissions choices based on point systems or quotas.
In Brief: A History of Affirmative Action in Admissions at the Supreme Court

By Andrea Stagg

1978 Regents of the University of California v. Bakke: Courts must use “strict scrutiny” when reviewing a state university’s use of race in admissions. Still, the educational benefits that flow from a diverse student body is a compelling interest that can justify the consideration of race in admissions.
1996 Hopwood v. Texas: The University of Texas admissions evaluation system, which used an applicant’s race as one of two factors considered, was held unconstitutional because it did not further any compelling government interest. The other factor considered in admissions was a numerical score based on the candidate’s test scores and high school academic performance.
2003 Grutter v. Bollinger: The Court upheld the use of race as one of many “plus factors” in an admissions program that considered each applicant individually.
2003 Gratz v. Bollinger: The court held unconstitutional the use of a system that automatically awards points to applicants based on race.
2013 Fisher v. University of Texas at Austin:  The Court vacated the lower court’s decision and remanded it.  It found that the lower courts did not appropriately apply strict scrutiny when they reviewed UT’s admissions program.

Office of General Counsel Members Who Contributed to This Project

Analysis of the three cases issued by the Supreme Court on June 24, 2013 was a team effort of the following attorneys and interns:

Bill Howard, Marti Anne Ellermann, Joseph Storch, Jim Jarvis, Seth Gilbertson, Anne Williams, Win Thurlow, Nedra Abbruzzese-Werling, Jean Sampson, Will Versfelt, Mark Lemire, Ruchira Podali, & Ilijana Kalezic.

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Additional Resources

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