After more than eight months of anticipation and speculation, the Supreme Court finally issued its opinion in Fisher v. University of Texas at Austin. Contrary to fears held by some and hopes held by others, the Court did not use the case as an opportunity to overrule Grutter v. Bollinger, thereby prohibiting the consideration of race in higher education admissions decisions. Instead, the Court vacated the Fifth Circuit’s decision upholding the University of Texas’ (“UT” or “University”) race-based admissions policy and remanded the case “for further proceedings consistent with [the] opinion.”
At first glance, the majority opinion authored by Justice Anthony Kennedy appears to be a straight forward tutorial regarding the parameters of strict scrutiny by which courts are to examine the constitutionality of race-based admissions plans. After concluding that the Fifth Circuit failed to analyze the UT plan under the proper constitutional standard due to the deference shown to the University during its narrow tailoring analysis, the Court decided that “fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis.” While the University and other affirmative action supporters may view the Court’s decision as an optimistic signpost for the future of race-based admissions policies, this Essay fears that, unfortunately, such optimism may be misplaced. It argues that a closer reading of the opinion reveals troubling language and sentiments that could detrimentally impact both the UT admissions plan, specifically, and the future of racial diversity in higher education, more broadly.
Eboni S. Nelson, Reading between the Blurred Lines of Fisher v. University of Texas, 48 Val. U. L. Rev. 519 (2013-2014).