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Fisher v. University of Texas II (U.S. Sup. Ct.)

READ CAC'S BRIEF IN Fisher v. University of Texas at Austin

In Fisher v. University of Texas at Austin, the Supreme Court considered whether the University of Texas at Austin’s holistic consideration of race in undergraduate admissions is constitutional under the Equal Protection Clause of the Fourteenth Amendment.

This marks the second time the Supreme Court has agreed to review Fisher’s challenge to the University’s race-conscious admissions policy.  In 2013, in Fisher I, the Court reaffirmed that universities have a compelling interest in educational diversity, and remanded the case to the Fifth Circuit to consider whether UT-Austin’s admissions program meets the narrowly tailored prong of strict scrutiny.  On remand, the Fifth Circuit held that UT-Austin’s admissions program satisfies strict scrutiny, and Fisher, once again, appealed to the Supreme Court.

On November 2, 2015, Constitutional Accountability Center, together with six of the nation’s most prominent constitutional law professors—Bruce Ackerman, Jack Balkin, Burt Neuborne, James Ryan, Eric Schnapper, and Adam Winkler—filed a friend-of-the-court brief in support of UT-Austin which argued that the text and history of the Fourteenth Amendment permit governments to enact race-conscious measures to ensure equality of opportunity to all persons regardless of race.  As the brief demonstrated, the Framers of the Fourteenth Amendment rejected proposals to prohibit any and all use of racial classifications by the government.  In fact, the Framers enacted a whole host of forward-looking, race-conscious measures to ensure equality of opportunity for all regardless of race and help fulfill the promise of freedom guaranteed by the Fourteenth Amendment.  Fisher’s argument that the University may take into account every kind of diversity—except for racial diversity—could not be squared with the Constitution’s text and history or the Supreme Court’s precedents. 

The Court heard oral argument on December 9, 2015. On June 23, 2016, in a 4-3 decision authored by Justice Kennedy, the Court held, as CAC had urged, that the race-conscious admissions program in use at the time of Fisher’s application was lawful under the Equal Protection Clause.  As the Court explained, “‘the Equal Protection Clause does not force universities to choose between a diverse student body and a reputation for academic excellence.’”

Briefs filed by CAC