Fisher II Case Study

In Fisher v. University of Texas at Austin (“Fisher II”), the United States Supreme Court will decide the constitutionality of the University of Texas’s (“University”) affirmative action policy, the impact of which is being widely debated. Some commentators fear that the Court is poised to end affirmative action altogether, thus causing reduction in the number of minorities who are admitted to universities across the country. Others believe that the Court should use Fisher II to invalidate all race-conscious policies and endorse a color-blind admissions process. Such concerns, and the expectations of those who would like to see affirmative action eliminated, are overstated. A careful analysis of the issues in Fisher II, including the Justices’

Part III applies the Court’s precedent to the University’s affirmative action policy and concludes that the policy violates the Equal Protection Clause. Part IV examines the impact of Fisher II on existing affirmative action policies and concludes that the Court’s holding will be narrowly crafted and thus negligibly impact other policies. In addition, Part IV asserts that the Court’s affirmative action jurisprudence should be fundamentally altered because it fails to adequately guide lower courts, legislatures, and litigants concerning the permissible scope of affirmative action policies. As discussed in Part IV, a more effective—and honest—approach would be to acknowledge that: (1) diversity is an essential part of ensuring inclusion in higher education and the workplace; (2) remedying past discrimination is a compelling state interest; and (3) in limited circumstances race may be a dispositive factor in the admissions or hiring process. The Court’s current framework, although well-intentioned, ignores these realities and tries to quantify the role of race in admissions – a task that is impossible and

This standard requires universities to demonstrate that the inclusion of race furthers a compelling governmental interest, and is narrowly tailored to achieve that interest. Of particular importance to the Court is whether “the means chosen ‘fit’ th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” Put differently, universities must demonstrate that including race in the admissions process is necessary to enroll a diverse student body, and is accomplished through means that are reasonably calculated to achieve the educational benefits of