Supreme Court Decision Preserves Public Universities' Compelling Interest In Achieving Racial Diversity

A.G. Schneiderman: States Have A Compelling Interest In Promoting Diversity At Their Institutions Of Higher Learning

WASHINGTON - The Supreme Court issued a 7-1 ruling today in the case of Fisher v. University of Texas, which vacates the decision of the Fifth Circuit upholding the University of Texas at Austin’s (UT) race-conscious undergraduate admissions policy.

The following statement may be attributed to Eric T. Schneiderman, Attorney General of the State of New York, regarding the decision:

“We are pleased that today’s decision preserves the vital principle that fostering racial diversity in education is a compelling interest critical to the future of the States and our Nation. While we are disappointed the Supreme Court did not affirm the Fifth Circuit’s decision, we are also pleased that the Supreme Court confirmed that courts should defer to a university’s judgment on the educational benefits of a diverse environment, and made clear that a university need not exhaust other alternatives before considering race in admissions."

The Court has sent the case back to the Fifth Circuit to determine whether the means UT has chosen to achieve diversity—a combination of a plan that automatically admits the top ten percent of graduating high school students in the State and considers race as one of many factors in admitting other students—satisfies strict judicial scrutiny. The Court’s decision leaves for another day questions about the range of admissions programs designed to achieve racial diversity through means different from UT’s that may be permissible under the Equal Protection Clause.

This past January, Attorney General Schneiderman submitted a friend-of-the-court brief on behalf of a bipartisan coalition of 14 states, the District of Columbia and the U.S. Virgin Islands. The brief urged the U.S. Supreme Court to uphold the UT Top Ten Percent Law and outlined the important and compelling state interest in achieving the educational benefits of diversity. The brief also noted that the Constitution permits them to consider race as one factor among many in developing admissions policies that foster a diverse academic community and that are tailored to the unique conditions and needs of each state's particular institutions of higher learning.

States that joined New York on the brief included Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Mississippi, Montana, New Mexico, North Carolina, Vermont, Washington, West Virginia, as well as the District of Columbia and the U.S. Virgin Islands.

The brief was prepared by New York Solicitor General Barbara D. Underwood, Deputy Solicitor General Richard P. Dearing, and Assistant Solicitor General Simon Heller.

A copy of the brief in Fisher v. University of Texas at Austin is available online here.

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