We encourage universities to more fully document the factual necessity of their plans and the reasons why some limited consideration of race in a holistic review process is the only practical way to achieve the diversity they think necessary to serve compelling educational interests.
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What follows is a condensed version of a statement by a group of constitutional scholars offering an explanation and assessment of the Supreme Court's decision on affirmative action in Monday's decision in Fisher v. University of Texas at Austin:

The U.S. Supreme Court's decision in Fisher v. University of Texasreaffirms thirty-five years of precedent upholding the compelling interest in educational diversity in higher education, and clarifies the legal standards that courts and educational institutions must follow in order to comply with the Constitution.

Consistent with the Court's previous rulings, the Court in Fisher upheld the value of diversity in promoting important educational benefits, in addressing racial isolation and stereotypes, and in preparing students for leadership in a diverse society. At the same time, the Court reinforced its earlier rulings that university admissions policies must be narrowly tailored and necessary to advance the compelling interest in diversity.

The Court's opinion in Fisher reaffirmed its 2003 decision in Grutter v. Bollinger, in which the Court concluded that the promotion of diversity in higher education is compelling: "We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to 'sustaining our political and cultural heritage' with a fundamental role in maintaining the fabric of society. . . . For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity." Moreover, as the Court stated in Grutter, higher education "must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America."

At the same time, the Court in Fisher clarified the standard that courts must apply in determining whether the means colleges employ to pursue diversity satisfy the Constitution. The Court disagreed with the lower court's assumption that the university's "serious, good faith consideration of workable race-neutral alternatives" was sufficient to justify the consideration of race in university admissions. Rather, academic institutions must demonstrate "that available, workable race-neutral alternatives do not suffice" to achieve their objectives.

The Court in Fisher emphasized that courts must closely scrutinize university admissions plans to determine that the university has fully exhausted race-neutral means of achieving diversity before resorting to race-conscious policies. Because the lower courts misinterpreted the Grutter standards by allowing too much deference to the University of Texas's judgment about the need for a race-conscious policy, it remanded the case to the lower courts to evaluate the evidence under the correct legal standard. The Court also clarified that the lower courts must determine that an admissions process works in a way that each applicant is evaluated as an individual and that race or ethnicity is not a defining feature of the application.

The decision in Fisher, like the 2003 ruling in Grutter, clearly rejects a constitutional requirement of an absolute race-blind approach to higher education admissions. Admissions programs that consider race as one of many factors in the context of an individualized consideration of all applicants can clearly pass constitutional review if they are shown to be necessary to promote diversity.

In sum, Fisher makes clear that promoting diversity in higher education can justify race-conscious admissions policies when they are carefully designed and consider race only as part of a flexible and individualized review of all applicants. There is nothing in this opinion that should lead universities to abandon affirmative action. We encourage universities to more fully document the factual necessity of their plans and the reasons why some limited consideration of race in a holistic review process is the only practical way to achieve the diversity they think necessary to serve compelling educational interests. Such a showing should not unduly burden universities or undermine their efforts to achieve diversity.

Erwin Chemerinsky
Raymond Pryke Professor of First Amendment Law
Founding Dean and Distinguished Professor of Law
UCI School of Law

Drew Days III
Alfred M. Rankin Professor of Law
Yale Law School

Martha Minow
Morgan and Helen Chu Dean and Professor of Law
Harvard Law School

Rachel Moran
Dean and Michael J. Connell Distinguished Professor of Law
UCLA School of Law

James Ryan
William L. Matheson & Robert M. Morgenthau Distinguished Professor of Law
University of Virginia School of Law

Theodore M. Shaw
Professor of Professional Practice
Columbia University School of Law

Geoffrey Stone
Edward H. Levi Distinguished Service Professor
University of Chicago School of Law

Laurence H. Tribe
Carl M. Loeb University Professor and Professor of Constitutional Law
Harvard Law School

For the full version of the Statement, see http://civilrightsproject.ucla.edu/legal-developments/legal-briefs/statement-of-nation2019s-leading-constitutional-law-scholars-on-u.s.-supreme-court2019s-affirmative-action-ruling

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