Skip to main content
A Better Partnership


Jun 2013
June 25, 2013

Court Compromises on Affirmative Action

Yesterday, the U.S. Supreme Court reached a compromise on the use of affirmative action in university admissions:  courts must rigorously scrutinize the justifications for race-conscious admissions policies, but universities may continue to consider applicants’ race if it is necessary to obtain a diverse student body.

The Supreme Court voted 7 to 1 to send the University of Texas’s affirmative-action admissions policy back to the lower courts because those courts gave too much deference to the University’s conclusion that it needed to consider applicants’ race. The lower courts must apply strict scrutiny to the University’s policy, the most probing version of judicial analysis.

When the Court took the case in 2012, many expected it would rule on whether the continued use of race in admissions policies was constitutional. The Court did not do so. Instead, it reiterated that its earlier decision addressing the University of Michigan Law School’s admissions policy required more scrutiny than the lower courts applied to the University of Texas’s plan.

Relying on the Court’s earlier decisions, Justice Kennedy wrote for the Court that courts must defer to a university’s determination that diversity is essential to its educational mission. Had the Court decided otherwise, it may well have decided that university admission policies that consider race are unconstitutional. Thus, the most important take-away for public universities is that race-conscious admissions policies are still constitutional.

But the Court also signaled that a university’s decision to use race as a factor in admissions decisions will be subject to exacting judicial review. Specifically, a university “must prove that the means chosen . . . to attain diversity are narrowly tailored to that goal.” And on this point, universities receive no deference. Instead, courts will “verify that it is ‘necessary’ for a university to use race to achieve the educational benefits of diversity.” To uphold a race-conscious admissions policy, a reviewing court “must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” Thus, the other important take-away for public universities is that they can only adopt a race-conscious admissions policy if all reasonable, race-neutral alternatives fail to provide the education benefits of a diverse student body.

The Court summarized the analysis that courts (and thus universities) must apply. “A university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context:  the benefits of a student body diversity that ‘encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.'”

The Court’s opinion hints that considering issues of diversity in schools, programs and majors may assist in showing that race is a necessary consideration in the admissions process. If you have questions regarding whether your university’s admissions policy remains valid in light of this decision, please contact Warner Norcross & Judd’s Higher Education Industry Group.

NOTICE. Although we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Also, we cannot treat unsolicited information as confidential. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you.

By clicking the ‘ACCEPT’ button, you agree that we may review any information you transmit to us. You recognize that our review of your information, even if you submitted it in a good faith effort to retain us, and even if you consider it confidential, does not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you.

Please click the ‘ACCEPT’ button if you understand and accept the foregoing statement and wish to proceed.



+ -