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FISHER V . UNIVERSITY OF T EXAS : T HE FUTURE OF R ACE -C ONSCIOUS A DMISSIONS POLICIES


Matt Houser*
The case of Fisher v. University of Texas points to the restless debate concerning the constitutionality of race-conscious admissions programs for institutions of higher education. While colleges and universities have strived to increase minority enrollment over the past half century, opponents of race-conscious admissions policies argue that the use of race in admissions policies violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Opponents of raceconscious admissions policies contend that non-minority students are treated unequally due to their race because the racial considerations made by admissions officers favor minority applicants. This problem lies at the center of the Fisher case, which brings into question the legitimacy of affirmative action in the admissions programs of public colleges and universities. In spite of the numerous pleas from individuals and organizations throughout the nation to prolong the use of raceconscious admissions programs, recent deliberations suggest that the impending decision of the Supreme Court may very well lead to the permanent removal of affirmative action in public institutions. As a result, college campuses may see a large decline in the number of minority individuals enrolled in undergraduate and even graduate institu1 tions. This feature examines the legal rationale advanced by the University of Texas in justifying their need for a race-conscious admissions program and explains why colleges and universities are currently permitted to utilize racial considerations in attaining a meaningful representationor critical massof minority individuals within their student bodies.

* 1

Undergraduate at Brandeis University, Class of 2013. Adam Liptak, College Diversity Nears Its Last Stand, N.Y. TIMES, Oct. 16, 2011, at SR4.

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I. INTRODUCTION

n 2008, Abigail Fisher applied to the undergraduate program at the University of Texas at Austin.2 To her dismay, she was denied admission to the institution. Fisher soon filed suit against the university, claiming that UTs race-conscious admissions policy violated her constitutional right to equal protection under the law guaranteed by the Fourteenth Amendment to the Constitution. Fishers lawyers argued both in the District Court and Fifth Circuit Court of Appeals that her constitutional right to equal treatment was violated by the universitys race conscious admissions program, which takes race into consideration when evaluating an individuals application. Fisher firmly believes that her chances of gaining entry into the institution were diminished significantly and unfairly because minority applicants were favored in the application process. Fisher contends that the University of Texas discriminated against her on the basis of her race by favoring applicants who, aside from their status as members of an underrepresented racial group, were less qualified than her for admission into UTs incoming undergraduate class. However, neither the District Court nor the Fifth Circuit Court of Appeals agreed with Fishers claim that she would have undoubtedly gained admission to UT had the university not used a race-conscious admissions program. 3 Although the plaintiff presented notable credentials (a reputable GPA of 3.59 and a sound SAT score of 1180), the prestigious university received a large number of strong applications that year. This stifling competition made it far more difficult for applicants of her status to gain admission to the university. Moreover, many applicants who held GPAs comparable to Fishers and were members of an underrepresented minority group were still denied admission to UT that year.4 These
2 Adam Liptak, Race and College Admissions, Facing a New Test by Justices , N.Y. TIMES, Oct. 9, 2012, at A1. 3 Fisher v. University of Texas at Austin, 631 F.3d 213 (5th Cir. 2011). 4 Nikole Hannah-Jones, A Colorblind Constitution: What Abigail Fishers Affirmative Action Case Is Really About, PROPUBLICA (Mar. 18, 2013), http://www.propublica.org/article/a-colorblindconstitution-what-abigail-fishers-affirmative-action-case-is-r.

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circumstances made it unclear that Ms. Fisher was certain to be accepted had it not been for UTs race-conscious admissions program. After receiving unfavorable rulings both in the District Court and Fifth Circuit Court of Appeals hearings, Fisher filed a petition for Writ of Certiorari with the Supreme Court on September 15th, 2011. 5 The Supreme Court eventually granted her petition and agreed to make a decision on the case this year. While Fisher was unsuccessful in proving that her application was harmed by UTs race-conscious admission policy, her efforts nonetheless raised concerns about the constitutionality of UTs race-conscious admissions program. These concerns shared by court officials and citizens alike became especially apparent during the oral arguments before the Court on October 10, 2012. During the oral arguments, the justices fervently questioned the University of Texas explanation for implementing a raceconscious admissions practice.6 It was in 2004 that the University of Texas at Austin submitted its proposal to the Board of Regents of the University of Texas System for instituting racial considerations within the admissions process of its various undergraduate and graduate programs. After reviewing minority enrollment figures as well as conducting several studies, the university articulated in its proposal that the student body lacked a sufficient level of minority representation within their undergraduate and graduate classes.7 Some members of the Supreme Court, however, seemed puzzled by the universitys demand for increasing minority enrollment. The University of Texas claimed in its 2004 proposal that a critical mass of minority students did not exist in its undergraduate classrooms. According to UTs 2004 proposal, a critical mass is an adequate representation of minority students that ensures the edu5 Miriam Rozen, Cert petition filed in University of Texas affirmative-action case, TEXAS LAWYER BLOG (Sep. 21, 2011), http://texaslawyer.typepad.com/texas_lawyer_blog/2011/09/cert-petitionfiled-in-university-of-texas-affirmative-action-case.html. 6 Transcript of Oral Arguments, Fisher v. University of Texas at Austin, No. 11-345 (2012). 7 UT Austin, Proposal to Consider Race and Ethnicity in Admissions, June 25 2004, http://www.utexas.edu/student/admissions/about/admission_proposal.pdf.

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cational benefits of a diverse student body. In the past several decades, courts have ruled that the use of racial considerations within an admissions process is constitutional so long as they were necessary to achieve the compelling interest of diversity.8 In Grutter v. Bollinger, former Supreme Court Justice Sandra Day O Connor explained that achieving diversity is a compelling government interest because of the educational benefits that arise from a diverse student body. According to Justice OConnor, the eradication of racial stereotypes and the preparation of students for civic engagement are among these educational benefits. In this decision, Justice OConner placed immeasurable value on the inclusion of a sufficient minority population within the student body of an academic institution. Referring to the Grutter ruling, the University of Texas argued that a race-conscious admissions program was necessary for achieving the compelling interest of attaining diversity. Given their collective studies and findings, UT was convinced that it had yet to attain a critical mass of underrepresented minority students within its undergraduate classrooms. However, various Justices were notably concerned about the Universitys interest in fulfilling its critical mass requirement, as UT failed to articulate exactly what constitutes a critical mass. Justice Roberts, for one, asked UTs counsel how many African American and Hispanic students were necessary for achieving a critical mass. Justices Alito and Kennedy also framed similar questions, asking how many students of each underrepresented minority group were essential for fulfilling the universitys objective. Gregory G. Garre, who spoke on behalf of the University, refused to define the universitys critical mass objective in terms of the number of minority students enrolled. When asked by Justice Roberts and other members of the court about how many students of each race should be enrolled in the institution, Mr. Garre consistently replied that the University of Texas has no fixed number or
8 Grutter v. Bollinger, THE OYEZ PROJECT, 2009/2002/2002_02_241 (last visited April 18, 2013).

http://www.oyez.org/cases/2000-

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percentage of students required for fulfilling its critical mass objective. Nevertheless, several of the Justices were very adamant about learning from Mr. Garre exactly when a university has achieved a critical mass of underrepresented minority students. Chief Justice Roberts emphasized to Mr. Garre that all race-based admissions policies must have a logical endpoint as articulated by Justice Connor in Grutter. Within their discussion arises an important point about the correlation between the number of underrepresented minority students enrolled within an institution and the benefits due to a diverse student body. Moreover, the critical mass notion utilized in UTs 2004 proposal sparks a lengthy inquiry as to how the determination can be made as to when a university has finally enrolled a sufficient number of underrepresented minority students within the institution. Understanding why these concerns are relevant to the Fisher case becomes highly useful in understanding the controversy associated with race-conscious admissions. It can be argued that the legal rationale articulated by the University of Texas in its 2004 proposal may require further revision in the future so as to completely eradicate the possibility of applicants being adversely affected due to their race. An assessment of this dilemma will involve a review of the significant details pertaining to UTs 2004 proposal. Following this review will be an examination of the judicial standards used to evaluate race-conscious admissions programs, paying close attention to the University of Michigan Law Schools notion of critical mass in Grutter v. Bollinger.9 Comparing the Grutter decision with the Fisher case, the feature will end with a speculative but nonetheless careful contemplation of the Fisher case.

II. UTS 2004 ADMISSION POLICY


In 2004, The University of Texas at Austin submitted a proposal to the Texas Board of Regents for implementing a new ad9

Grutter v. Bollinger, 539 U.S. 306 (2003).

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mission practice. The University expressed within the proposal that it was crucial to implement the practice of race-consciousness in the admissions process of its various undergraduate and graduate programs. It was soon after the University gained permission to adopt its proposed modifications that the changes were hastily made to the admissions process. In the 2004 proposal, the University argued for the necessity of permitting its admissions personnel to consider the race of an applicant as a factor in the admissions decision. This conclusion was reached after reviewing student enrollment figures as well as conducting several studies that revealed a lack of minority students enrolled in the institution. The proposal cites a number of statistics regarding the enrollment of minority students. It notes that in undergraduate courses in 2002, approximately seventy percent of classes had either one or zero African American students enrolled. In addition, forty-five percent of undergraduate classes had only one or zero Hispanic students enrolled. UT found these statistics to be of great concern given its past efforts to increase minority enrollment. Since 1996, the University adopted a number of race-neutral initiatives to significantly increase minority enrollment. It was in the same year that the Supreme Court made a ruling that struck down the use of race-based criteria in admissions decisions at UTs Law School.10 Given the Courts criticism of UTs Law School admissions policy, the university sought other means for increasing minority enrollment without using racial considerations in admissions decisions. Unlike race-conscious admissions programs, a race-neutral initiative attempts to raise the number of underrepresented minorities within an institution without using specifically racial considerations. Whereas a race-conscious admissions program may consider a students race as a factor in their application, race-neutral methods refrain entirely from taking race into account and instead rely on other factors and circumstances for increasing minority enrollment figures.
10

Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).

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A personal achievement index, for example, was used by the University to identify quality students whose accomplishments or merits might not have been accurately reflected by their class rank and SAT scores. For any students who fell short of being admitted because of their SAT scores or GPA, the personal achievement index would take into consideration other important factors regarding a students characteristics or accomplishments, such as their socioeconomic background or family history. These factors would be examined in two essays completed by the applicants, and trained admissions personnel were instructed as to how these essays should rank based on the personal achievement index. The University also instituted race-neutral programs that included a scholarship fund as well as a unique policy created by the Texas Legislature known as the Top Ten Percent Rule. The rule was enacted in 1997 as a part of Texas House Bill 588 and was intended to increase minority enrollment without resorting to racial considerations in the admissions process. These race neutral programs brought about vast improvements in the years following their implementation. Seventy-seven percent of the Universitys African American students and seventy-eight percent of its Hispanic students gained entry into the undergraduate program due to the Top Ten Percent Rule. The University has received hefty praise for its efforts, with a notable magazine devoted to diversity in higher education ranking the establishment as sixth in producing degrees for minority students.11 In spite of the notable contributions of the race-neutral alternatives, the Universitys studies on minority enrollment still indicated a lack of a meaningful minority presence within undergraduate classes. As mentioned, UT explained in its proposal that either one or zero African American and Hispanic students were present on average in many of the schools undergraduate courses. During the same period, another study was conducted in which a number of students were surveyed on their impression of the Uni11

VERSE: ISSUES IN HIGHER EDUC., Jun.

Victor M.H. Borden, Top 100 Undergraduate Degree Producers: Interpreting the Data, DI12, 2008.

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versitys diversity both inside and outside of the classroom. A number of minority students reported that they felt isolated in the classroom. A majority of students further expressed the opinion that the existing minority presence was not sufficient to achieve the benefits of a diverse campus. The surveys not only indicated a widespread belief that there was a lack of diversity on campus but also the social isolation faced by minority students. Taking these circumstances into account, the University argued that racial diversity within the classroom was an essential component in accomplishing its academic mission. That is to say, the University aimed to educate its students to become the future leaders of a diverse Texas population. Especially in a vastly growing population of multicultural workers, the University must prepare its students to be the leaders of Texas by engaging them in classroom contact with peers of differing racial, ethnic, and social backgrounds. By doing so, students not only benefit from the robust exchange of ideas and spirited discussion, but also learn how to engage with a diverse population. The University of Texas found the implementation of a raceconscious admissions program to be imperative in obtaining a racially diverse student campus. When the University submitted its proposal, its argument for increasing minority representation rested utterly on their proper use of the standards set out in Grutter v. Bollinger. The Grutter case assumes an indispensable role in the Fisher case, for it advanced a legal rationale permitting colleges or universities to increase minority representation. Essentially, it allowed higher education institutions to seek a critical mass of underrepresented minority students so as to achieve the benefits of racial diversity.12 This notion follows from what is commonly referred to as the diversity rationale, which prescribes that the use of race is constitutional so long as necessary for achieving the compelling state interest of diversity.13 As mentioned, courts have gradually found the benefits of a diverse student body to be well
OCONNOR, supra note 9. Mitchell J. Chang, Reconsidering the Diversity Rationale, LIBERAL EDUCATION (2005), http://www.aacu.org/liberaleducation/le-wi05/le-wi05feature1.cfm.
13 12

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worth pursuing. In Grutter, racial diversity became intertwined with these supposed benefits, with Justice Connor spending a portion of the majority opinion expounding on what benefits a racially diverse student campus offers academic institutions. Yet the use of racial considerations in admissions at higher education institutions faces the highest standard of judicial examination. Also known as strict scrutiny, the source of tensions facing judges and legal experts in their review of the Fisher case rests predominantly on the challenge of determining the constitutionality of UTs race-conscious policies within this particular legal scope. Comprehending the principles governing strict scrutiny will prove instrumental to providing a clearer picture of the obstacles facing the Court in determining if UTs policy is compatible with the Constitution.

III. STRICT SCRUTINY A. Purpose


In understanding how the strict scrutiny test applies to the Fisher case, we must first consider the reasons that courts find it necessary to apply this standard of judicial review. Let us recall that Abigail Fisher originally filed suit against the University of Texas for violating her constitutional right to equal treatment under the Fourteenth Amendment. Because of UTs race-conscious admissions program, she believed that her application was hampered by the fact that she was not a member of an underrepresented minority group and was therefore discriminated against on the basis of her race. It is due to these situations where individuals are possibly being treated differently because of their race that strict scrutiny finds a vital purpose within the judicial examination of race based admission policies. Courts rely on strict scrutiny in order to strike down as unconstitutional any illegitimate uses of race by an institution. An unfortunate yet nevertheless common occurrence in our nations history is the implementation of policies that erroneously discriminate against people because of their race. Regardless of the good inten-

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tions the government or other institutions may have for enacting such kinds of legislation, the dire consequences posed by these laws and policies seem to largely outweigh their supposed benefits. The case of Brown v. Board of Education serves as a timeless example of how race-based policies can pose significant harm to the prosperity of others.14 The Supreme Court ruled in that case that state laws establishing different schools for black and white students were unconstitutional. But furthermore, the endorsement of segregation by the Board of Education was seen by critics as a form of unequal treatment preventing many students from attaining a quality education and, moreover, access to greater opportunities within their lives. Since the landmark decision of Brown v. Board of Education, courts have applied the strict scrutiny test to determine the legality of universities race-conscious admissions policies. Brown serves as a constant reminder of how the use of racial classifications by our academic institutions can seriously damage the chances of our youth to gain a quality education. As such, strict scrutiny assumes a pivotal role in securing the equitable treatment of students by our higher education establishments. Especially in the admission process, opponents of race-conscious admissions programs often contend that racial considerations increase the likelihood of students being unfairly denied access to a particular institution because of their race. Under the gaze of strict scrutiny, any racebased policy or measure which results in the wrongful treatment of applicants as envisioned by opponents of race-conscious admissions programs would surely be suspect.

B. Two-Prong Test
Strict scrutiny ensures the minimization of pervasive racial biases within the college admissions process by subjecting raceconscious admissions policies to a two-prong test. The first prong of strict scrutiny requires that the use of race must be necessary for achieving the compelling interest of diversity. As briefly mentioned, the University of Texas claimed within its proposal that it
14

Brown v. Board of Education, 347 U.S. 483 (1954).

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was necessary to implement a race-conscious program to achieve the educational benefits of diversity. This argument first emerged in Regents of the University of California v. Bakke when Justice Powell delivered his opinion in the case disputing the affirmative action policy of the medical school at the University of California, Berkeley. Standing by his own unique view, Justice Powell concluded that attaining a diverse student body was the only legal justification for the schools consideration of race as a factor in a persons application. Along with attaining the compelling interest of diversity, strict scrutiny also mandates that the use of race by an academic institution be narrowly tailored. That is to say, a higher education institution must only rely on measures that are specifically and narrowly framed for achieving the educational benefits of a diverse student body. If a policy or initiative is not specifically designed to achieve a compelling state interest, then it fails to comply with the narrowly tailored prong of strict scrutiny. Furthermore, the use of race by an institution of higher education must also be the most restrictive means for achieving the desired ends of diversity. In Regents of the University of California v. Bakke, for example, the Supreme Court ruled that the Berkeley medical schools affirmative action policy was not narrowly tailored because it reserved a certain number of seats exclusively for African-American applicants.15 It stated that such racial measures are a distinct violation of the Constitution as they place an overt emphasis on a persons race instead of equal consideration of individual credentials. Furthermore, the allotment of spaces to a specific race would undoubtedly increase the chances of a (non-minority) person being denied entry simply because of his or her racial identity. Essentially, it ruled that any institution purporting to increase minority enrollment through racial quotas acts unconstitutionally by unjustly favoring people who belong to a distinct racial group. On the grounds of obtaining student diversity, Justice Powell suggested a way in which an institutions race-based policies may
15

Regents of the University of California v. Bakke, 483 U.S. 265 (1978).

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be narrowly tailored. Justice Powell ordained in the Bakke case that an admissions program must holistically review an individual application. While Powell found the contribution of diversity to be substantial, he deemed race as only one of many factors contributing to the benefits of diversity, finding that admission programs must consider all of the applicants qualities and accomplishments denoting their potential contributions to the student body. Powell found that the only way racial considerations would survive the narrowly tailored prong of strict scrutiny was to impose a system that would eliminate the possibility of inequitable treatment. By holistically reviewing each application, race is only considered insofar as every other notable factor and, therefore, prevents admission personnel from unjustly favoring one person over the other because of their race.

IV. GRUTTER V. BOLLINGER


The Grutter decision reinforces and extends Bakkes diversity argument. Justice OConnor, who delivered the majority opinion of the court, further elaborated on the benefits derived from a diverse student campus. She describes how the benefits of diversity extend to the various aspects of civic engagement - so much, in fact, that racial diversity itself becomes an ends well worth pursuing. For this reason, she found the Law Schools interest in obtaining a critical mass of underrepresented minority students constitutional. As long as student applications were being holistically reviewed, Justice OConnor found it permissible for the law school to seek students who can improve racial diversity on campus. Yet the possibility remains that student applications being reviewed under the University of Michigan Law Schools plan were not narrowly tailored to achieve the compelling interest of diversity. While the Supreme Court ruled in favor of the Law Schools race-conscious admissions process, the Justices were largely divided in their opinions on the matter. Several of the Justices argued within their court opinions that the Law Schools admissions program was far from being specifically and narrowly designed to achieve the compelling interest of student diversity.

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However, the critical mass objective as described by Michigans Law School in Grutter bears a close resemblance to a racial quota. Racial quotas most frequently occur in the college admissions process as an act of racial balancing in which a higher education institution may be accused of increasing minority representation so as to mirror their own state population, hence the charges put forth against the California Board of Regents in Bakke. Nevertheless, the Law School argued in court that its critical mass notion was devoid of any numerical criteria for how many minority students should be enrolled. Justice OConnor generally accepted the schools stance that its critical mass goal should be defined in reference to the educational benefits of diversity. If a meaningful representation of minority students is meant to provide the grounds upon which the benefits of diversity are to occur, then having a considerable portion of the student body being composed of underrepresented minorities would likely accomplish this goal. But we should remind ourselves that the critical mass notion cannot be defined by a fixed number or percentage of the student body. The Law School proceeded during their trial to validate their understanding of critical mass by attributing several underlying goals to their pursuit of a critical mass. These include the assurance that minority students do not feel isolated or feel like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes. When the Law School fulfilled these objectives, then the critical mass standard would no longer be necessary. But by no means did the Grutter court fully agree with Justice OConnors opinion. The court split 5-4, and several of the Justices disagreed with the majority decision. Chief Justice Rehnquist, for one, exemplified the type of concerns surrounding the approval of the Law Schools admission policy. Contrary to the schools opinion, he believed that the critical mass concept was not narrowly tailored to achieve the benefits of diversity. There are two lines of explanation that are particularly notable in his argument. For one, the schools explanation of the goals underlying the critical mass standard is undeniably based on the size of the student body rela-

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tive to the number of underrepresented minority students. The critical mass goal may not include a specific number of students, yet it would seem as if an academic institution would retain complete discretion over the number of students they considered to be representative of a critical mass.16 Justice Rehnquist further compounds his argument with his conclusion that the Law Schools admission policy does not actually ensure that a critical mass of underrepresented minority students will be enrolled. To him, the critical mass would have to be fulfilled by amassing a consistent representation of students from different, underrepresented minority. If a collection of African American students would suffice for a given institution, then it becomes natural to think that a similar representation of Hispanic or Native American students must also be apparent within a student body. The statistics demonstrate, however, that a number of students were chosen over those of another race within the admissions process. The concerns mentioned by Justice Rehnquist and Justice Kennedy certainly merit further attention given the nature of the Law Schools race conscious admission policy. In order for their admission process to be narrowly tailored, each and every applicant must be given individualized consideration in which race is equally considered amongst various other important factors. The possibility of this happening within the admission program of Grutter appears far less probable since the ends of a true critical mass of underrepresented minority students is not necessarily guaranteed. To be more specific, the law school never provided a plausible explanation for how their admission system guarantees that a critical mass of different underrepresented minority groups would be obtained on the basis of holistic review.

V. FISHER V. TEXAS
UTs 2004 proposal justifies its new admissions policies based on the diversity rationale advanced by Grutter. As such, the
16

OYEZ, supra note 8.

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troubles associated with the critical mass notion in Grutter may also apply to the Fisher case, since at the forefront of the policys constitutionality lays the question of whether the methods to reach a critical mass are narrowly tailored. A key difference to note between the race-conscious admissions programs of the University of Michigan Law School and the University of Texas is that the latter places individualized consideration on an application if the applicants themselves do not qualify through their academic achievements. Michigans plan coordinated racial considerations alongside the review of a students academic accomplishments. It can be i nferred from this fact that the applicant pool in the Law School is less likely to be affected to the same extent as those applying to UT. On that note, the University of Texas had already implemented several race-neutral alternatives for increasing minority enrollment whereas Michigans method for achieving the same goal was always primarily dependent on an individualized review of each applicant. A matter sure to arise within the Supreme Courts impending decision entails the level of deference that higher education institutions are given in conducting their admissions programs. It was decided in Sweatt v. Painter that academic institutions retain a certain level of academic freedom in choosing who is allowed to attend.17 Justice Powell, in fact, grounded his rationale for achieving the compelling interest of diversity partly within the legal autonomy afforded to universities and colleges in their admission decisions. Having said that, Justice O Connor was fairly pleased with her assumption that the Law School made a determination that their use of racial considerations within their admission process was narrowly tailored on good faith. Nevertheless, the Supreme Court may find discomfort with applying the same level of judicial review to Fisher knowing that other means exist for increasing minority enrollment. Perhaps one of the greatest challenges facing the Supreme Court in making a decision on this case is deciding whether indivi17

Sweatt v. Painter, 339 U.S. 629 (1950).

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dualized consideration of each applicant can be assured in light of an admissions program which consciously seeks to increase minority enrollment. Depending on the level of scrutiny with which the Court examines UTs admissions program, the critical mass standard may not be upheld. The Grutter decision demonstrates the level of subjectivity to which admissions programs are entitled in choosing students who can fulfill the critical mass goal. Yet the diversity rationale is not necessarily at odds with the critical mass standard. Granted, a small collection of states has begun to eliminate racial considerations altogether from the admissions process. This examination demonstrates that there are potentially grave flaws with the critical mass standard, but we have yet to truly deduce if racial considerations are entirely unconstitutional. For that matter, there may be ways of enlisting a critical mass of underrepresented minority students so long as a visible system exists that guarantees that all applicants are given individualized consideration. While certain legal critics have proposed modifying the critical mass standard, others have considered broadening the review of socioeconomic factors that can put into context the racial disparities continuing to undermine our Constitutional belief in a free and equal society. Either way, the critical mass notion as described in Grutter and later articulated UT in Fisher will further a perpetual discourse about the use of race-conscious admissions to achieve the heavily sought educational benefits occurring from a diverse student campus.

VI. UPDATE
On June 24, 2013, in a 7-1 decision, the Supreme Court made its ruling in Fisher v. University of Texas. Rather than issuing a ruling that addressed the constitutionality of race-conscious admissions programs, the Court vacated the Fifth Circuit's decision and remanded the case for further consideration. The Court found that the Fifth Circuit's decision was incorrect because it had failed to apply strict scrutiny in its analysis of UT's admissions program. Under Grutter, a reviewing court must apply strict scrutiny to any admissions program that uses racial classifications. Although a re-

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viewing court may defer to a university's judgment that diversity is essential to its educational mission and therefore a compelling government interest, a reviewing court may not defer to a university's claim that its program is narrowly tailored. In order to satisfy the narrow-tailoring requirement of strict scrutiny, a university must demonstrate that its race-conscious admissions program is absolutely necessary for achieving its goal of diversity and that there are no less-restrictive means of accomplishing that goal. The university always bears the burden of proving that its program is narrowly tailored. In its decision, the Fifth Circuit did not closely examine UT's admissions policy to determine whether UT has sufficiently proven that its program is narrowly tailored. Instead, the Fifth Circuit deferred to UT's assertion that its use of race as an admissions factor is necessary and required Fisher to prove otherwise. Because the Fifth Circuit failed to apply the correct standard of judicial review to Fisher, the Supreme Court remanded the case back to the Fifth Circuit, instructing it to apply the standard of strict scrutiny to the case.18

18 Fisher v. University of Texas 570 U.S.__2013.