Supreme Court sidesteps reverse discrimination issue

Atty. Emmanuel Samonte Tipon 

Does consideration of race in a state university’s admission process violate the equal protection clause?

The University of Texas at Austin considers race as one of the factors in its undergraduate admissions process in pursuit of its commitment to increase enrollment of racial minorities. That program was adopted following the U.S. Supreme Court (“Supreme Court”) decisions in Grutter v. Bollinger, 359 U.S. 306 which upheld the use of race as one of many “plus factors” in an admissions program that considered the overall individual contribution of each candidate and Gratz v. Bollinger, 539 U.S. 244, which ruled as unconstitutional an admissions program which automatically awarded points to applicants from certain racial minorities.

Fisher, a Caucasian, was rejected for admission to the 2008 entering class of the University. She sued the University and school officials alleging that the university’s consideration of race in admissions violated the equal protection clause of the U.S. Constitution. The District Court granted summary judgment for the University. The Fifth Circuit Court of Appeals affirmed and upheld the University’s admissions program, saying that prior decisions of the Supreme Court required courts to give substantial deference to the University, both in the definition of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal.

The Supreme Court, instead of squarely addressing the issue raised by Fisher, held that the Fifth Circuit acted incorrectly when it did not hold the University to the demanding burden of strict scrutiny articulated in prior decisions of the Supreme Court and remanded the case to the Fifth Circuit to assess whether the University had offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.

In the leading case of University of California v. Bakke, 435 U.S. 265, the Supreme Court recognized that state university “decisions based on race or ethnic origin . . . are reviewable under the Fourteenth Amendment,” using a strict scrutiny standard. In that case, the Supreme Court said that there is a compelling interest that could justify the consideration of race in the educational benefits that flow from a diverse student body, but this interest is complex, and encompasses a broad array of “qualifications and characteristics of which racial or ethnic origin is but a single though important element”.

In Gratz, the Supreme Court held that a university must clearly demonstrate that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is ‘necessary . . . to the accomplishment‘ of its purpose.”  The government has the burden of proving “that the reasons for any [racial] classification [are] clearly identified and unquestionably legitimate.” In Grutter, the Supreme Court said that strict scrutiny must be applied to any admission program using racial categories or classifications, and that a court may give some deference to a university’s “judgment that such diversity is essential to its educational mission,” provided that diversity is not defined as mere racial balancing and there is a reasoned, principled explanation for the academic decision.

The Supreme Court held that strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice, yet that is what the District Court and Fifth Circuit did here. Fisher v. University of Texas at Austin, No. 11-345, June 24, 2013, 570 U.S. ___ (2013).

COMMENT: What the University did to Fisher is racial discrimination, pure and simple. But can the alleged (but unproven) educational benefits of diversity justify racial discrimination? Justice Thomas, a black (hopefully that is the politically correct term), in his concurring opinion answered that it cannot, saying “that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.” “The Constitution abhors classifications based on race” because “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com; www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)