Law & Courts Commentary

Fisher v. University of Texas and Lessons for K-12 Districts

By Erica Frankenberg & Liliana M. Garces — July 07, 2016 5 min read

The U.S. Supreme Court’s long-awaited decision last month in Fisher v. University of Texas, a case challenging the constitutionality of a race-conscious student-admissions policy, affirmed that the policy adopted by the University of Texas at Austin satisfied the requirements of the equal-protection clause of the 14th Amendment. The 4-3 majority opinion provided much-needed guidance to postsecondary institutions for how they can lawfully consider race in admissions.

As scholars studying racial inequality in education who have contributed to friend-of-the-court briefs the last three times the high court has considered educational diversity cases, we are heartened by this decision and by the attention it brings to the importance of diversity at all levels of education. Others have rightly hailed it as a huge victory for postsecondary institutions in their efforts to further their educational missions. But what does the decision mean for K-12 schools?

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The important implications for K-12 education rest with the court’s affirmation of policies that seek to further diversify and achieve the promise of equal educational opportunity for all students. As a recent report from the U.S. Government Accountability Office illustrated, segregation by race and class in our nation’s K-12 public schools is rising. Research demonstrates the serious consequences these segregative trends have on students and their communities.

The Fisher case first reached the high court in 2012, after Abigail Fisher, a white female applicant who was denied undergraduate admission to the University of Texas at Austin, sought to reverse a lower-court ruling that the institution’s policy was constitutional. After initially sending the case back to the lower court to conduct a more rigorous assessment, the U.S. Supreme Court finally settled the case on June 23, affirming the lower court’s ruling that the university had justified its consideration of race and that its policy was constitutional.

This second opinion, known as Fisher II and authored by Justice Anthony M. Kennedy, confirmed that postsecondary institutions can pursue the educational benefits of diversity when they provide a reasoned, principled explanation for how diversity serves the institution’s educational mission.

Educators can consider race in their policies and practices to attain diversity, as long as they do so in a careful and limited manner."

Kennedy’s majority opinion resonates with his concurring opinion in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), which affirmed the compelling interest K-12 schools have in diversity and in avoiding the harms of racial isolation. Parents Involved was a splintered decision that upheld these interests while striking down two districts’ voluntary-integration policies for not being narrowly tailored in their consideration of race. While Parents Involved and Fisher II had different outcomes, the resounding principle in both decisions is the same: Educators can consider race in their policies and practices to attain diversity, as long as they do so in a careful and limited manner.

Perhaps because of the various, conflicting opinions argued—none of which had a clear majority of justices—the Parents Involved decision has been misunderstood to stand for the proposition that race cannot be a factor in voluntary school integration efforts. But importantly, in his 2007 opinion, Kennedy outlined strategies—some of which included the use of race—that he believed would be narrowly tailored. The key to each of those strategies was that when school districts considered race, they did not make assignment decisions based on the individual race or ethnicity of a student, but instead on the racial composition of a geographical area or other targeted efforts.

The high court’s endorsement of race-conscious policies in Fisher II is a timely reminder for K-12 schools of this latitude allowed in Parents Involved, particularly because the on-the-ground interpretation of the 2007 decision by school boards and their legal advisers was often more restrictive than the decision itself. In the initial aftermath of Parents Involved, for example, some districts preemptively discontinued the use of race-conscious policies out of concern that not doing so would continue to involve them in a lengthy and costly legal process. This was an understandable reaction in light of a 2008 “Dear Colleague” letter from the U.S. Department of Education’s office for civil rights advising school districts to use alternatives in student assignment that did not include consideration of race, such as those involving the use of socioeconomic status.

But since this initially restrictive reading of the Parents Involved decision, some school districts have employed promising race-conscious policies that can serve as examples for other districts. The Jefferson County school system in metropolitan Louisville, Ky., for instance, implemented a new race-conscious student-assignment policy conforming to the guidelines articulated by Kennedy’s 2007 concurring opinion. Their policy has not only survived legal scrutiny, but has also been effective in maintaining racially and economically diverse schools, according to our research.

And another school board, in Lower Merion, Pa., successfully defended a challenge to its consideration of neighborhood racial composition in the redrawing of school boundaries. Even more importantly, in December 2011, the U.S. departments of Education and Justice rescinded the 2008 “Dear Colleague” letter and replaced it with comprehensive guidance to districts clarifying that, under Parents Involved, race-conscious policies were, in fact, allowed. The guidance gave general examples of permissible and effective race-conscious policies and the planning process districts should go through to be able to successfully defend their voluntary-integration policies.

As Kennedy noted in Fisher II, “It remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.” By affirming the legality of University of Texas at Austin’s admission policy, the court empowered colleges and universities to continue with their efforts by considering race in their policies in a reflective manner. In so doing, the court reminded K-12 educators and administrators of the same imperative in their efforts to attain diversity and avoid the harms of racial isolation in our society, where race continues to shape educational access and success.

The Fisher v. University of Texas decision is a reminder of the discretion left to school districts in Parents Involved to employ a wide range of strategies to reduce racial isolation and create diverse schools, including through the use of race-conscious policies tailored to a district’s goals and their particular context.

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A version of this article appeared in the July 20, 2016 edition of Education Week as What Fisher v. University of Texas Means for K-12 Districts


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