On September 27, the U.S. Department of Justice (DOJ) and U.S. Department of Education Office for Civil Rights (OCR) published questions and answers on the Supreme Court’s decision in Fisher v. University of Texas at Austin. Fisher held that the University of Texas must affirmatively demonstrate that its consideration of race in admissions is necessary to achieve the educational benefits of diversity. The Q&A offers little elaboration on the holding in Fisher, but reaffirms the agencies’ view that colleges and universities may pursue the benefits of diversity through narrowly tailored, race-conscious admissions programs.
Specifically, the Q&A:
- Interprets Fisher as “follow[ing] long-standing precedent recognizing that colleges and universities have a compelling interest in ensuring student body diversity, and can take account of an individual applicant’s race as one of several factors in their admissions program as long as the program is narrowly tailored to achieve that compelling interest.”
- States that Fisher did not change “the standard of scrutiny that courts must apply when evaluating . . . admissions programs” or “what colleges and universities must do to narrowly tailor their admissions programs to meet the compelling interest in diversity.”
- Continues to recognize the benefits of diversity and encourage colleges and universities to pursue diversity.
- Acknowledges, as Fisher held, that courts must not defer to colleges and universities’ judgment about the means chosen to pursue diversity and states that “prior to taking into account an individual student’s race in the admissions process, colleges and universities must determine that available, race-neutral alternatives do not suffice to achieve the benefits of diversity.” The Q&A encourages colleges and universities to consult DOJ and OCR’s 2011 “Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education,” which “remain[s] in effect” and addresses permissible race-neutral and race-conscious measures.