The challengers argued that UT-Austin’s policy violated the Equal Protection Clause of the Fourteenth Amendment because it allowed the University to take race into account in making decisions to admit students. The lower courts rejected this claim, and the Supreme Court granted review.

On August 13, 2012, CAC filed an amici curiae brief in the Supreme Court defending the constitutionality of UT-Austin’s admissions policy on behalf of CAC and some of the most prominent constitutional scholars in the country: Professors Bruce Ackerman, Vikram Amar, Jack Balkin, Burt Neuborne, James Ryan, and Adam Winkler. Drawing on the work of our clients, our brief demonstrated that the text and history of the Fourteenth Amendment supports the use of race to foster equality of opportunity. As discussed in CAC’s brief, the Reconstruction Framers, contemporaneous with the passage of the Fourteenth Amendment, enacted a long list of race-conscious legislation designed to guarantee equality of opportunity for all persons regardless of race. In this respect, the Framers of the Fourteenth Amendment were the originators of affirmative action. Our brief argued that, under the text and history of the Fourteenth Amendment as well as the Supreme Court’s case law, UT’s sensitive use of race in admissions was constitutionally permissible in order to ensure a diverse, accomplished academic community and to provide pathways to professional life and leadership for all of the state’s residents regardless of race.

On June 25, 2013, in a 7-1 decision (with Justice Kagan recused), the Supreme Court sent Fisher back to the lower court for further review. In the majority opinion authored by Justice Anthony Kennedy, the Court explained that the U.S. Court of Appeals for the Fifth Circuit had failed to apply the strict scrutiny standard properly, deferring to the University rather than requiring it to prove that its policy was narrowly tailored to the compelling state interest in educational diversity. Accordingly, the Court sent the case back to the appeals court to analyze the University’s policy under strict scrutiny. Justice Ruth Bader Ginsburg, who cast the lone dissenting vote, explained in her dissent that she believed that the court of appeals had correctly applied strict scrutiny in upholding the University’s policy.

The Justices’ narrow ruling clarified the strict scrutiny standard but did not announce any new limits on the use of race in university admissions. The Court left intact its prior precedents in Bakke and Grutter, which allowed use of race as one factor among many in university admissions, and did not decide the constitutionality of UT-Austin’s policy, leaving the issue to be considered first by the lower courts.

On July 15, 2014, the Fifth Circuit ruled 2-1 to again uphold UT-Austin’s policy. On February 10, 2015, Fisher appealed the Fifth Circuit’s ruling to the Supreme Court, which granted the petition on June 29, 2015.

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.’”