In Fisher v. University of Texas, the U.S. Supreme Court affirmed a decades-old principle that colleges and universities may use race-conscious affirmative-action plans in order to enroll a diverse student body. To consider race in admissions, however, institutions must prove to courts that race-neutral alternatives—such as relying on socioeconomic status or where students live—will not work. In the court’s words, colleges must prove that “no workable race-neutral alternatives would produce the educational benefits of diversity.”
Most commentators greeted Fisher with a yawn, or a sigh of relief or disappointment, concluding that the court had changed very little.
Lower courts and colleges may ultimately beg to differ, as the court’s emphasis on the exploration of race-neutral alternatives represents a subtle but potentially significant shift. No longer may lower courts simply defer to the good-faith decisions of colleges regarding the necessity of explicitly considering race in admissions decisions rather than some proxy for race. Colleges must instead attempt to prove, and lower courts must determine, what counts as a “workable” race-neutral alternative. This is much harder than it might seem. It also raises questions that go to the heart of a college’s mission and stretch the institutional competence of courts. <Read more.>